Can Attorneys Give Gifts Under an LPA?

Under a Lasting Power of Attorney (“LPA”), an attorney is permitted to give gifts on behalf of the donor, providing the gifts fall within the Office of the Public Guardian’s legal framework to gifting.

The guidance states that there are 2 categories of permissible gift:

1. Small gifts on occasions such as birthdays, anniversaries and holidays as long as these gifts are in keeping with the donor’s previous practices and are reasonable in value; and

2. Gifts to charities that the donor has previously supported, providing the gift aligns with the donor’s wishes.

Attorneys must always act cautiously when exercising their authority under the LPA, and ensure that gifts are reasonable and proportionate to the donor’s financial situation, are in the best interests of the donor, and are in keeping with the donor’s values, preferences, and historic behaviour.

If an attorney wishes to make a larger gift beyond what is customary, they should have clear authority to do so, either from the LPA deed, or from the Court of Protection.

It is always advisable that attorneys keep clear records of any gifts made, their value and the reason for the gift, in case they are scrutinised by the Office of the Public Guardian or challenged by family members.

Unauthorised gifts can not only result in the attorney being removed from their position, but it can also result in a police investigation. This is because fraud and abuse of position are criminal offences under section 4 of the Fraud Act 2006.

An attorney could not decide to simply gift a donor's money (for example to help a grandchild buy a house), without very clear instructions, otherwise they could be at risk of disputes with family members, or criminal investigations. This would be the case even if that person was eventually going to inherit money from the donor.

If you are an attorney or a family member of a donor and you have any concerns regarding a gift, or if you think someone is spending money inappropriately under an LPA, you should seek legal advice and our team here at Samuels Solicitors LLP would be pleased to assist you. 

Contact us today to speak to one of our legal experts.