I am an attorney – can I make gifts on behalf of a donor?
My widow mother has just been diagnosed with early-stage dementia and Ive been advised to organise A Lasting Power of Attorney for her Health & Welfare as well as her Financial Affairs. Should I do this jointly with my brother and sister or is it easier to grant the powers to one of us.
A Lasting Power of Attorney (LPA) in England and Wales is a legal document that can be used where a person no longer has mental capacity to make decisions for themselves. There are two types of LPA – one appoints attorneys to make decisions in respect of financial affairs such as managing bank accounts, paying bills and selling property. The other appoints attorneys to made decisions about health and welfare such a medical care, moving into a care home and decisions about end-of-life treatment.
Choosing an attorney or attorneys is a decision your Mother should make. Government guidance on making an LPA recommends that she should think about factors such as how well they look after their own affairs, such as finances; if they can be trusted to make decisions in their best interests; and how happy they will be to make decisions on her behalf. It is recommended that at least two attorneys are appointed so that the role, which can be burdensome, is shared and in case one of the attorneys is unable to act which if there was only one attorney, would render the LPA ineffective.
Attorneys can be appointed to act jointly meaning every decision needs to be made jointly and unanimously. This can be cumbersome. But the principal drawback is that if one of the attorneys dies or loses capacity themselves the LPA becomes null and void. Alternatively many people opt for the powers to apply jointly and severally in which case attorneys can make decisions together or just one of them can make a decision on their own. This mitigates the 'risk factors' because the LPA will continue to work if one of the attorneys is unable to act for some reason. This is the option most people choose.
It is also possible to appoint a reserve attorney who can act as a replacement when one of the original attorneys can no longer make decisions on behalf of the donor.
It is probably advisable for your Mother to appoint yourself and one of your siblings as her attorneys with the other being appointed as a replacement. However if she wants to be even handed she could appoint all three of you.
When executing the LPA a certificate provider will need to confirm, that despite her diagnosis, your mother has the capacity to make an LPA. She will need to understand information relevant to the decisions, retain this information, weigh up the pros and cons of her decision and communicate this. If she has lost capacity then an application will need to be made to the Court of Protection which can be a lengthy process so I suggest that you act without delay.
This article was originally published by FT.com on 25 May 2021 and in the newspaper on 30 May 2021.
Jemma’s practice involves supporting professional and lay deputies for individuals who do not have capacity to manage their property and financial affairs. This includes assisting them with complex applications to the Court of Protection for approval to purchase properties, statutory wills and making gifts. She also supports them with complying with their legal obligations as a Deputy including management of their finances, adaptations to properties, care planning and best interests decision making. She has a particular interest in cases where issues relating to health and welfare arise, including assisting individuals with making an application to the Court to become a health and welfare deputy.
If you have any concerns about capacity, or if you are contemplating making a LPA for the first time, please get in touch with our team for more information.
Since writing the above, the government has announced plans to modernise and strengthen the Lasting Power of Attorney (“LPA”) process, by which a person can appoint attorneys to manage their affairs in the event that they lose capacity, following last year’s consultation on modernising the system.
In summary, the major reforms will be:
A Lasting Power of Attorney (“LPA”) is a legal document which allows you to choose who should help you make decisions or make decisions on your behalf when you lose mental capacity and are no longer able to do so yourself. The person making the LPA is called the ‘donor’ and the person or persons given authority under the LPA are called ‘attorneys’. There are two types of LPA: one for ‘Financial Decisions’, for example paying bills or dealing with properties; and one for ‘Health and Care Decisions’ which can cover decisions from what type of care you receive to whether life sustaining treatment is given or not.
The Government has for some time promised to introduce a register requiring overseas entities holding UK property to identify its beneficial owners, in its effort to increase transparency in UK property ownership and reduce the attraction of the UK’s property market to money launderers. Indeed, we last blogged about the potential overseas entities register in May 2019. With UK-based entities subject to strict information-sharing requirements since 2016 (in the form of the register of People with Significant Control or “PSC Register”), many have been calling for an equivalent overseas entities register to be implemented to provide a way of tracking overseas owners who ultimately own and control UK land.
Laura Harper was delighted to be invited to talk to the editor of ‘Wealthbriefing’ recently about the important topic of philanthropic giving by HNW individuals and families.
Apple officially released its ‘Digital Legacy’ feature on 13 December 2021. This permits individuals who have been nominated by the deceased to access the deceased’s accounts and data after their death. Diva Shah examines the impact of this new feature and its implications for Private Client practitioners in matters of estate planning where digital assets are involved.
The UK government introduced new legislation that will require those working in care homes to be double vaccinated against coronavirus. This has been implemented through the Health and Social Care Act 2008 (Regulated Activities) (Amendment) that came into effect on the 11th November 2021. This regulation is applied to England only.
While IHT escaped major changes in the Autumn Budget the Chancellor could be tempted to tweak the framework for IHT in future, writes James Ward. But what playbook would he use?
As non-UK tax residents, the couple will be subject to special rules for calculating the capital gains tax (“CGT”) due in relation to either the sale or transfer of their UK property.
Our well regarded French contact* has warned us that a new law just passed in France is going to cause problems for Anglo / French succession planning. Under the laws of England and Wales, all individuals have testamentary freedom and can leave their estate to whomever they choose under the terms of their will.
Trans adults with full decision-making capacity have the freedom to secure hormonal and surgical interventions to align their bodies with the physical attributes typical of the gender with which they identify (a process known as “transitioning”). However, for those who lack capacity, the involvement of others who are responsible for making decisions on their behalf is required, and the position can be complex as a result. This blog explores the approach to making decisions relating to transitioning on behalf of protected trans people, applying the best interests test and guidance from case law, and discussing the practicalities for decision-makers.
With the price of crypto assets generally making a good recovery from the Covid-19 related decline of 2019 contrasted with the very recent volatility following issues with the adoption of the cryptocurrency as legal tender in El Salvador, investors in cryptocurrencies might be considering realising some of their gains to try to help minimise any further instability.
In recent years there have been calls for a change in the law to protect vulnerable adults from falling victim to what has become known as “predatory marriage”. This is due to a rise in cases where fraudsters have married vulnerable and often elderly individuals, without the knowledge of their loved ones.
The Office of the Public Guardian (OPG) and the Ministry of Justice are working together to modernise the process of making and registering Lasting Powers of Attorney (LPAs). The consultation is open to the public and will remain open until 13 October 2021.
Good news – The “secret” specialist HMRC unit set up in 2019 to examine the tax avoidance risks has been wound up after finding no evidence of correlation between the use of FICs and non-compliant behaviour.
Deputies are typically appointed because individuals cannot make decisions for themselves due to illness, like Alzheimers or dementia, old age or perhaps as a result of a catastrophic personal injury or medical negligence.
There are several reasons why someone may need the assistance of a financial deputy, stemming from incapacity due to an accident or a consequence of old age. There is however a darker side to this type of work that Court of Protection lawyers are seeing more and more of. This relates to those who have suffered some form of financial abuse and/or undue influence.
After a spinal injury the long-term impact on your life and that of your families can be significant. You may need a care package, a new home or adaptations to their existing accommodation, therapies and specialised equipment.
The pandemic has changed the world – there is no doubt we are all “online” far more now than before. Social media now extends into every aspect of our lives, from those notorious repetitive baby pictures to those ‘should never have been posted university photos‘. We collect and share moments of our lives in the digital world.
In the latest edition of the Financial Times Money Q&A, Jemma Garside, senior associate in our private client team answers a question: "Should I set up a joint lasting power of attorney for my mother?"
Subject to any restrictions or conditions in the Lasting Power of Attorney (“LPA”), a property and affairs attorney can make gifts on the donor’s behalf to the donor’s friends, family members or acquaintances on customary occasions.
Skip to content Home About Us Insights Services Contact Accessibility