Can Deputies make Christmas gifts on behalf of P?

With Christmas around the corner, this is often a question asked by lay Deputies who have been appointed by the Court of Protection to manage P’s financial affairs.

A gift may be a transfer of money, property or a possession of P to the Deputy or to other people. The Deputyship order includes a term which details the Deputy’s power to make gifts on P’s behalf and this is usually limited to customary occasions (such as Christmas).

As ever, P’s best interests must be at the centre of any decision made and to ensure that a gift is made in P’s best interests, the Deputy must consider all of P’s circumstances including the size of P’s estate and the size of the proposed gift.

The Deputy must always consider whether P has the mental capacity to understand the decision to give a gift. If P has capacity to make a gift then it is advised that P makes that gift themselves rather than instructing the Deputy to do this on their behalf – this is because a Deputy’s role is restricted to making decisions only where P lacks capacity to do so themselves. Where P does not have capacity to make the decision, they should still be consulted so that their wishes and feelings about making the gift are taken into consideration. It is important to note that having a financial Deputy does not mean that P is unable to make any decisions at all. Please read our blog ‘How is Mental Capacity assessed?’ to find out more.

It is crucial for a Deputy to be vigilant where P requests that a gift is made whether that be to family, friends or charity. The Deputy should keep a record of the steps taken to make sure P had the capacity to make the gift. For further information about this, please read the Office of the Public Guardian Practice Note PN7.

If the gift is a substantial gift such as a large amount of money, especially where it is not proportionate to the size of the estate, further advice should be sought by the Office of the Public Guardian or a specialist Court of Protection Solicitor.

If you would like any further assistance or have any questions for our Court of Protection team regarding the above, please contact us for advice on 01484 821 500 or email willsandprobate@ramsdens.co.uk to book a free information session.