Subject to instructions saying otherwise, attorneys of a Property and Affairs Lasting Power of Attorney have a power to make:
- Gifts to charities that the donor may have given to; and
- Gifts to family members, friends or acquaintances of the donor on ‘customary occasions’
A customary occasion for this purpose means occasions where is it usual for gifts to be given, for example a birth, a birthday, a wedding/civil partnership, an anniversary or religious holidays.
Any gifts made by attorneys must be reasonable in regards to the size of the donor’s estate and their expected current and future needs. The type of gifts the donor used to make when they had capacity should also be considered although just because a donor used to make generous gifts, it does not mean that it would be reasonable for the attorneys to make similar sized gifts, for example if care home fees have reduced the size of the estate dramatically.
If an attorney makes gifts that are beyond what is reasonable, they could be seen as breaking the law. It is highly advisable for attorneys to keep lists of any gifts they make should the OPG ask for an account of any gifts made.
This power may be restricted, for example instructions can be included in the LPA stating that attorneys must not make any gifts, or that any regular gifts to charity they make should cease.
An attorney does not have a power to:
- Make gifts into a trust fund for grandchildren or others.
- Make gifts to charities, organisations or persons who the donor had no connection with.
- Pay school fees for grandchildren or others.
- Make interest-free loans.
- Maintain any family member of the donor other than their spouse/civil partner or minor child.
- Make gifts to avoid contributing to the donor’s care fees – this would be seen as deliberate deprivation.
- Make gifts to reduce the size of the donor’s estate for inheritance tax purposes.
If the attorneys with to make a gift beyond the authority of the LPA, they would need to apply to the Court of Protection for them to give them that power.