The ability of Deputies to give gifts is a topic that we are frequently asked about. The Office of the Public Guardian (OPG) published guidance which provides helpful clarity to lay deputies on the rules around gifting. There are strict limitations placed around gifting, which Deputies should be careful not to breach. 

What is gifting? 

The OPG describes gifting as ‘a gift is when you move ownership of money, property or possessions from the person whose affairs you manage to yourself or to other people, without full payment in return.’

What gifts can a Deputy make? 

Allowable gifts must be on a customary occasion (for example, birthdays or religious holidays), given to someone connected to the person who lacks capacity and of reasonable value, considering the person's estate and needs. Deputies may continue previous gifting habits, for example, regular charity donations, if they are proportionate. Deputies must consider the person's capacity to make the decision to gift and must involve the person who lacks capacity in the decision-making process as far as possible. 

Deputies cannot gift without further authority from the Court of Protection: 

• a large gift 
• making a loan from the person's funds
• creating a trust of the person's property
• living rent-free in a property owned by the person 
• selling a property for less than its value or transferring it into someone else's name 
• changing the Will of someone who has died, using a deed of variation to redirect or redistribute the person's share in the estate 
• maintaining someone other than the person, such as paying school fees
• removal of cash assets, which reduces the size of the person's estate
• paying a family member to provide care for the person who lacks capacity

If you intend to do any of the above, please get in contact with us and we can help you make the application required to the Court of Protection.