Not for profit law - Giving Gifts

giving giftsgiving gifts when acting as when acting as an Attorney an Attorney

Acting as an attorney for someone who has lost their mental capacity under a Property and Financial Affairs lasting Power of Attorney (LPA) can raise difficult questions around the issue of gifting. the attorney is often a close relative, a child or grandchild, and will be aware when the person they are looking after was generous in giving financial assistance to family members, including themselves, before their loss of capacity.

if the person who granted the lPA no longer has the mental capacity to make their own decisions about making gifts, their attorney can make these decisions for them. however, there are strict limits on gift-giving as an attorney under an lPA and such gifts can often give rise to a conflict of interest. however sympathetic the attorney might feel towards the struggling family member, they must consider that making such gifts may not be in the looked after person’s best interests. if made the gifts are likely to go beyond the legal powers granted to the attorney under the lPA which could find the attorney in trouble for acting outside those powers.

gifts can take many forms. they include giving money or presents on customary occasions such as birthdays, weddings, civil partnerships, Christmas, Eid or diwali but also things like making an interest free loan, paying school or university fees, allowing someone to live rent free in a property belonging to the looked after person, or giving gifts to charity.

An attorney is responsible for protecting the looked after person’s financial resources, to ensure they are used in that person’s best interests. A conflict may arise if an attorney is asked to give, or continue to give, financial support from the looked after person’s funds to close family members, perhaps because they are struggling with debts, housing expenses or the costs of education. Not For Profit Law are experienced solicitors with a social conscience who feed their profit back into the community via their charitable partner, norfolk Community Foundation.

if you have a question about an existing lPA, or would like details about setting up lPAs for yourself or a loved one, you can get in touch on 01603 555440 or enquiries@notforprofitlaw.co.uk