A guide to making Christmas gifts as an Attorney

Lucy Brown, Wills, Trusts & Estates

With the festive season fast approaching, you might be wondering if you can make Christmas gifts on behalf of a loved one for whom you hold a Lasting Power of Attorney (LPA) for Property and Financial Affairs. Here's a quick guide to help you navigate this responsibility with ease and cheer!

Understanding the legal framework
Under Section 12 of the Mental Capacity Act 2005, you can make gifts from the Donor's estate in specific circumstances:

• On customary occasions to persons (including yourself) who are related to or connected to the Donor.
• To any charity to whom the Donor made or might have expected to make gifts.
• The value of each gift must be reasonable considering all circumstances, especially the size of the Donor's estate.
• If the gift falls outside these circumstances, approval from the Court of Protection may be required.

What counts as a "customary occasion"?
A customary occasion includes events like a birth, marriage, civil partnership, or any other occasion where presents are typically given within families or among friends. If the Donor usually gives presents at Christmas, this will likely qualify as a customary occasion.

Key considerations

1. Mental capacity: Does the Donor understand the decision to give a gift? Always ensure you act in their best interests.
2. Reasonableness of the gift: Can the Donor's estate comfortably afford the gift? Consider their income, life expectancy, and future wishes.
3. Recipient's connection: How is the recipient connected to the Donor? Are they a relative or close friend?
4. Charitable gifts: Would the Donor be expected to make a gift to this charity?
5. LPA wording: Check Section 7 of the LPA for any specific guidance on making gifts.
6. Record keeping: Keep a record of any gifts made under the LPA in case the Office of the Public Guardian requests this information.

By following these guidelines, you can ensure that the Donor's generosity shines through this festive season while adhering to the necessary rules. Do not hesitate to get in touch with Lucy Brown or a member of our Wills, Trusts & Estates Team to ensure you are keeping to the guidelines and happy gifting!