Can an attorney make a gift?
Jack Dray examines the question, “Can an attorney make a gift?”
The general rule regarding attorneys (and deputies) is that they should not make a gift from a person’s estate. However, someone with an LPA can make a gift providing the following three conditions are satisfied:
- The gift is made on a customary occasion within families or friends; such as birthdays/weddings/Christmas etc.
- The gift is made to someone connected/related to the person. Or the gift is made to a charity that the person supported.
- The gift is one of reasonable value, given the size of the person’s estate.
A gift of ‘reasonable value’ is a subjective test and a court would consider the impact it would have on the person’s current and future financial situation. Most importantly, the court will consider whether the gift was made in the person’s best interests.
If an attorney were to make a gift from the estate, they would be expected to keep receipts/records of the gift, along with an explanation of the reasons behind the gift, and a justification of why this would be in the person’s best interest.
If the attorney wishes to make a gift that falls outside these criteria, they will need to apply to the Court of Protection. The courts also have the power to either retrospectively disallow or ratify a gift made by an attorney.
If the attorney is found to have made an unauthorised gift, then the following options can be considered:
- An application to the court to remove the attorney;
- An application to the court to suspend the attorney and temporarily freeze the accounts of the person for their protection;
- An application to the court for retrospective approval of the gift;
- A. request that the gift be returned/repaid; or
- Referral of the matter to the police.
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