A Gifting Application is required where an Attorney or Deputy needs to seek permission from the Court of Protection to gift some of the assets or funds of the person who has lost capacity (referred to as “P”) to themselves or a third party.
Deputies and Attorneys have limited powers to gift and these are usually limited to providing gifts which P would have ordinarily provided to appropriate people on “customary occasions” (e.g birthdays, religious holidays etc) or to continuing to provide charitable donations as P would have done when able to.
It is important that an Attorney or Deputy has consideration to the size of P’s estate to ensure that any gifts made, even with this authority, are both reasonable in size and proportionate to the size of P’s entire estate and the usual outgoings that P can expect to make.
The Court publishes a Practice Direction as guidance for Attorneys and Deputies and a link can be found here.
For anything outside of these charitable or customary exceptions, authority of the Court should be sought before making the gift. Decisions are made by the Court on a case by case basis and so depend on the circumstances and what is considered to be in P’s Best Interests.
What is a Gift?
Gifting in this context means transferring the money, property or possessions of P to a third party, although this can also include:
- Making payments to a third party by way of financial support or maintenance;
- Making a loan from p’s assets;
- Tax planning;
- Living in P’s property rent free;
- Disposing of P’s assets at an undervalue.
What if I have already made a gift without Court authority?
Seek advice from an appropriate professional as a priority. They can assist you to put together a retrospective gifting application to the Court, to obtain authority for the gift after the event.
Failure to obtain the appropriate authority may mean you have acted outside of your powers. This could result in an investigation by the Office of the Public Guardian (“OPG”) and a case against you in the Court of Protection. The Court has wide powers to remove Attorneys and Deputies, cancel Powers of Attorney and to authorise a new Deputy to take action to seek return or recovery of the gifted items.
There is also a chance for Police intervention and action to be taken against you or the third party and so it is particularly important for everyone involved that you seek advice at the earliest opportunity.
Talk to Tollers
If you wish to speak with someone about gifting or a gifting application, please contact a member of our EVCU team.