OPG updates guidance on gift-giving rules for deputies and attorneys
The Office of the Public Guardian (OPG) has updated its guidance on the legal framework under the Mental Capacity Act 2005 governing when deputies and attorneys acting under a lasting power of attorney or an enduring power of attorney, or appointed by the Court of Protection, may give gifts on behalf of a person lacking capacity, and setting out the action it may take where authority is exceeded. The guidance states that gifts are permitted only in limited circumstances, typically on customary occasions to people connected to the person or to charities they supported, and must be reasonable, affordable and in the person’s best interests; any gift outside these statutory exceptions requires prior approval from the Court of Protection. Deputies and attorneys must first assess whether the person has capacity to decide, involve them as far as possible, and consider their wishes, feelings, financial position, current and future needs, care costs, tax implications and the impact on inheritance, while recognising that lasting powers of attorney, enduring powers of attorney or wills cannot extend statutory gifting powers. Property transfers, loans, transactions involving conflicts of interest and other substantial arrangements generally require court approval, with only limited de minimis exceptions. The OPG may investigate concerns, require repayment, seek removal or suspension, enforce security bonds or refer matters for criminal investigation where unauthorised gifts are made.