What is an Attorney?
An Attorney is a person appointed by a Lasting Power of Attorney to act on another person’s behalf. There are two types of Lasting Power of Attorney: Property & Financial Affairs and Health and Welfare. The Property and Financial Affairs Lasting Power of Attorney allows the Attorney to manage another person’s financial affairs and, in some very specific circumstances, allows them to make gifts.
In what circumstances can an Attorney make a gift?
We always advise proceeding with caution. The law is very strict but does allow an Attorney to make gifts on customary occasions. This includes birthdays, anniversaries, weddings, civil partnerships and graduations as well as Christmas, Eid, Diwali, Hanukkah and the Chinese New Year.
If you are acting as an Attorney and would like to give a gift on one of these occasions then you must consider:
- Is it in the best interest of the person you are acting for?
- Does the Power of Attorney contain any restrictions which prevent you from doing so?
- What gifts have previously been made by the person you are acting for? Who have they given gifts to in the past and what was the value of those gifts? If you are making a gift, it must be to a connected person, such as a family member or a close friend. Gifts can also be made to charity if the person you are acting for has previously supported charities in this way.
- Does the person you are acting for have capacity? If so, you should always consult with them and find out their wishes.
- What are their current and future care needs? You should only make a gift that is relative to the size of their estate and should not detract from their care costs.
- Always keep a proper record of the gifts that you are making in case evidence is required in the future.
If you are in any doubt at all then we advise you to take the proper advice before making a gift as an Attorney on behalf of another person. Any gifts that do not fall within the rules can only be made if the Court of Protection has given authority. Attorneys will face penalties if they make unauthorised or excessive gifts outside of their powers.
If you have any questions or would like to speak to a member of our team please email mail@clarkeandson.co.uk or call 01256 320555.
Claire Redhead
Wills & Estate Planning Director
