19 March 2019 - Article
The Office of the Public Guardian (OPG) published guidance in May for property and financial affairs attorneys and deputies on making gifts on behalf of the person for whom they act. Other than normal and reasonable gifts for Christmas and birthdays etc, many gifts must be authorised by the Court of Protection.
The guidance explains what counts as a gift, who can make gifts for someone else and when, and to whom gifts can be made. It also explains that if an attorney or deputy wants to change the limits on gifts, they must apply to the Court of Protection, and warns of the consequences of making an unauthorised gift.
When reviewing estate accounts it may well be appropriate to ask questions about gifts made from the donor's estate as those made without the authority of the Court may be open to challenge and funds due to the estate. Click here for the guidance.
The guidance supplements the OPG's more detailed practice note on making gifts, which was last updated on 2 September 2015).
The OPG has also published a practice note on its approach to family care payments (otherwise known as gratuitous care payments) that Court of Protection deputies make to family members who are providing care to someone lacking mental capacity (P).
It sets out a definition of family care, the legal framework, when the Court of Protection's authority is needed, factors deputies must consider when deciding whether payments are in P's best interests, approaches for calculating the level of, increases in and frequency of payments, record keeping, reviews and how family care payments may be taxed.
The guidance applies to deputies appointed by the court. Whether the guidance applies to attorneys acting under a lasting or enduring power of attorney depends on the terms of the specific powers granted. Even when the guidance does not apply, attorneys may still find it useful to refer to it.
The guidance advises deputies and attorneys when an application to the Court of Protection is needed to approve such family payments. Although in many circumstances court authority may not be needed, if it is clear in the context of an estate that such payments have been made during the donor's lifetime, the question could be raised as to how these payments have been authorised under the deputyship or attorneyship to ensure that payments made had been correctly made from estate funds.