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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
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CoP Talks: Empowering minds, protecting lives - Introduction to capacity and CoP (Part 1)
CoP Talks: Empowering minds, protecting lives - FAQ’s - What are LPAs? (Part 2)
CoP Talks: Empowering minds, protecting lives - Health and Welfare Deputyships (Part 3)
CoP Talks: Empowering minds, protecting lives - Can a person who lacks capacity get married? (Part 4)
CoP Talks: Empowering minds, protecting lives - When does a Deputy need CoP approval for legal work? (Part 5)
CoP Talks: Empowering minds, protecting lives - What is a Statutory Will? (Part 6)
CoP Talks: Empowering minds, protecting lives - Can an attorney/deputy make gifts? (Part 7)
CoP Talks: Empowering minds, protecting lives - How can a Professional Deputy assist after a Personal Injury? (Part 8)
CoP Talks: Empowering minds, protecting lives - How does a Professional Deputy manage a client’s affairs? (Part 9)
In this podcast episode, we explore the rules and considerations around the types of gifts that can be made by attorneys or deputies acting on behalf of someone who lacks the mental capacity to make such decisions themselves.
Key points covered include:
- The categories of "customary occasions" where an attorney or deputy is permitted to make gifts to the donor's friends, family, and charities, without needing court approval.
- Examples of "non-customary" gifts that would require prior approval from the Court of Protection, such as loans, paying education fees, or allowing someone to live in the donor's home rent-free.
- The requirement that any approved gifts must be reasonable, proportionate, and affordable to the donor's overall estate, without compromising their own care or quality of life.
- There is strong guidance against an attorney or deputy making gifts to themselves, due to the clear conflict of interest, and the need to obtain court approval for such personal gifts.
- There are exceptions where limited annual or small gifts can be made without court approval, such as within inheritance tax exemptions, if the donor has a short life expectancy and the estate can afford it.
Whether you are serving as an attorney or deputy or are simply interested in understanding the parameters around gift-giving on behalf of a mentally incapacitated person, this podcast provides essential insights. Learn how to navigate this complex area while upholding your fiduciary duties.
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