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Make a Gift Application to the Court of Protection
If you are appointed as a deputy for someone who lacks mental capacity, you are able to make gifts on their behalf; however, there are limits. Some gifts require an application to court to approve the gift.
Our expert solicitors will be happy to discuss your requirements, can advise you and make an application for larger gifts.
How JMW Can Help
The expert Court of Protection team, based in Manchester and London, comprises more than 35 solicitors. It is one of the largest in the country, and has been recognised by the Legal 500 and Chambers & Partners for the exceptional service it provides.
Uniquely, the team speaks 14 other languages between them; Arabic, Cantonese, French, German, Hindi, Hokkien, Mandarin, Punjabi, Spanish, Taiwanese, Thai, Turkish, Urdu and Welsh. By supporting those clients whose first language is not English, they are able to gain a greater understanding of their best interests.
What Gifts Do I Need to Get Court Authority For?
A gift is a transfer of money, property or possessions from the estate of the person you are acting for. Gifts can be made to yourself or other people and can include:
- Financial payments to family members who have taken on care roles
- Financial support for other family members like a husband or wife
- Waived interest
- Financial planning for care to maximise funds
- Unusual financial arrangements
- Inheritance Tax (IHT) and other tax planning
Additionally, gifts that have already been made will need the court’s retrospective authority.
Why do I need to apply to the Court of Protection to make a gift?
The main focus of a deputy is to protect the assets of the person they are acting for. Decisions regarding making a gift need to be considered on their own merits. The overriding decision is always whether it is in the best interests of the party they act for.
The best interests of the person should be determined on each occasion a gift is considered and should take into account all the relevant circumstances.
Are there any gifts that can be made without the approval of the Court of Protection?
A deputy is permitted to make a gift if they have the authority to do so in the court order. Deputyship Orders usually give a limited power to make the following gifts without consent from the court:
- Gifts on customary occasions to relatives or persons connected to the person they are acting for, provided that the value of the gift is not unreasonable in regard to all the circumstances and size of the estate
- Gifts to charities that the person they are acting for might have made. Again, the gift shouldn’t be unreasonable and regard all the circumstances and the size of the estate
Any proposed gifting beyond the terms of the Deputyship Order will require an application to the Court of Protection.
What happens if I have made an unauthorised gift?
The Office of the Public Guardian (OPG) can investigate and ask for an account of any gifts made at any time during your deputyship. If a deputy is found to have made an unauthorised gift, the OPG may:
- Apply to the Court of Protection for removal of the deputy and the appointment of a new deputy to take their place
- Apply to the Court of Protection for the security bond of a deputy to be called in
- Require the deputy to apply for retrospective approval from the Court of Protection in circumstances where such an application would have a reasonable prospect of success
- Request that the deputy seeks the return of the gifts and restores the assets
- Refer the matter to the police or other relevant regulatory or safeguarding bodies. A new deputy may be authorised to take legal action to recover the money gifted. In some cases, the police may be asked to conduct an investigation.
What should I do if I have already made an unauthorised gift?
If you think you have made an unauthorised gift, it is important that you seek legal advice. We can apply for retrospective approval from the Court of Protection or advise you how to proceed with peace of mind.
Deputies should make a record of any gifts they have made and the circumstances of such. This is so they are in position to give an account to the OPG if asked.
Talk to Us
If you’re looking to make a gift that requires an application to be made to the Court of Protection, our solicitors are here to help. Call us today on 0345 872 6666, or fill in our online enquiry form and we will get back to you.