When can my Attorney make a gift on my behalf?

When making a power of attorney it is very important to be aware of when your attorney can make gifts on your behalf. If you already have an Enduring or Lasting Power of Attorney you should know when your attorney or attorneys can exercise such powers in the event that you are unable to make such a decision for yourself.

The law, specifically the Mental Capacity Act 2005 (The Act) sets out precisely when your attorney may make a gift under either an Enduring Power of Attorney or a Lasting Power of Attorney.

In the absence of any restrictions or conditions in your power of attorney, your attorney has only very limited authority to make gifts on your behalf.

The Act sets out very clearly how your attorney is to act on your behalf generally and lists 5 very important principles that govern your attorney’s actions. The Act also states that your attorney must always act in your best interests. Should you wish to be reminded of the 5 principles they are listed in your Lasting Power of Attorney and on a separate factsheet available from our office.

Your attorney cannot therefore do whatever he or she wishes and can only make a gift on special occasions (such as birthdays,  weddings,  anniversaries, christenings or Christmas) and to those persons connected to you – and this may include your attorney – or to any charity that you might have been expected to make a gift to. Any gift made on your behalf must be reasonable in all the circumstances and proportionate to the size of your estate.

Should the attorney wish to make a more extensive gift from your estate or on an occasion other then a special occasion or to a non charitable organisation he should apply for an order from the Court of Protection setting out the circumstances. If the Court felt that the application was in your best interests they would make an order authorising the attorney to make the gift on your behalf.

For further information regarding making gifts please contact Nicola August.

Article reviewed August 2020.