The answer is usually no.  Whilst a Donor retains mental capacity, s/he can make gifts to whomever they choose. 

Once the Donor has lost capacity, gifts (other than the usual seasonal gifts such as birthday, Christmas etc) require court approval.

In a recent case, Re HH, 2018 EWCOP13, the Court of Protection retrospectively approved £73,000 of £88,000 that the son of HH withdrew from HH’s account under an Enduring Power of Attorney and claimed were gifts by HH.  The Court of Protection said that the unapproved withdrawals are to be treated as a debt or to be deducted from the son’s share of HH’s residuary estate.

At the time of the application, HH was 95 and lived in the care home and had been diagnosed with Alzheimer’s back in 2010 and therefore there was no question about HH’s capacity to make the gifts himself.  The application by the Attorney to the Court for retrospective approval was objected to by the Attorney’s older brother but no other party including the trustees of HH wife’s trust.

Gifts can be made for the provision of care and the Office of the Public Guardian recently published guidance on family care payments and some of the factors considered in this case are as follows:

  • The care must be reasonably required to meet the Donor’s needs and be of a good standard;
  • The payments must be affordable (taking into account the Donor's resources, age and life expectancy).
  • Payments must properly reflect the input by the Attorney. There should be some evidence of how the care payment has been calculated in relation to the degree of care being provided.
  • The care must actually be provided.
  • Attorney(s) should consider payments alongside the professional care in place (i.e. it should be necessary in addition to).
  • Payments should represent a saving on the cost of professional care. The guidance does set out some measures for calculating payment.
  • Payments should take into account any other contributions the Donor makes towards the running of the household or paying bills. Payments may need to be adjusted down if the Attorney is living in the Donor's property rent-free or is getting other income.
  • Payments should take into account the overall family situation, (e.g. whether anyone is in gainful employment).
  • Payments should be agreed in consultation with the Attorney and other family members (where possible).

For more information about drafting a Lasting Power of Attorney to suit your needs or advice on how to conduct an Attorneyship, please contact our dedicated team of Wills, Trusts and Probate solicitors on 0161-941-4000 or email us lawyers@myerson.co.uk

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