If someone lacks the mental capacity to manage their own financial affairs, a deputy appointed by the Court of Protection or someone granted a Lasting Power of Attorney will usually be managing their finances on their behalf.
It is common for the deputy or attorney to want to make a financial gift on behalf of the person lacking capacity, such as for birthday or Christmas presents, and although it may seem a perfectly reasonable thing to do, there are legal limits to what the gift can be.
There are two specific circumstances when the disposal of money or property in the form of a gift can be made, according to the Mental Capacity Act 2005:
In every case, the value of the gift must be reasonable regarding the circumstances and in particular the size of his or her estate.
Things that must be considered include the wishes of the person lacking capacity, the contents of his or her will, their previous habit of making gifts, any ongoing care costs and their life expectancy. And extra rules will apply where the value of the estate exceeds the Inheritance Tax limit.
Any proposed gifts which do not meet these considerations will need to be approved by the Court of Protection.
These might include strategic tax planning, the payment of a child’s education fees or the remuneration of family members for care provided to the person who lacks capacity (known as “Family Care Payments”). Due to the complexity of the issues and because, potentially the Court can order a deputy or attorney to pay back any gifts made unlawfully, it is important to take professional advice about the process from a court of protection solicitor who specialises in this type of work.
The legal costs of a successful application are usually met from the funds of the person lacking capacity.
Give us a call or complete our online enquiry form, to see how we can help. We have offices in Telford, Shrewsbury, Oswestry, Ludlow, Bromyard, Hereford and Conwy, so are able to act for clients all over Shropshire, Herefordshire, Mid and North Wales and across the Midlands.
For a friendly chat about how Lanyon Bowdler' Court of Protection Solicitors can help, please contact Neil Davies, Head of Court of Protection, or a member of his team.
Lanyon Bowdler is one of the very few legal practices in the region with its own specialist Court of Protection department which deals with many gift applications each year.