The recent case of FL v MJL [2019] EWCOP 31 looked at the
authority of a deputy to make gifts from the surplus income of the
person whose funds he manages. MJL is a very wealthy individual
with wealth of around £17,000,000 resulting in an income in
the region of £123,000 but the court’s decision
provides useful guidance whatever the assets or income of the
person concerned.
The family in this case had asked for permission to make more
extensive gifts from MJL’s capital but the Court did not
allow this. It did allow that gifts could be made out of the extra
income that MJL had each year that he did not need for his own
personal expenditure. The Court ordered that the gifts are to be
paid in similar proportions to the division of MJL’s estate
in his will, to ensure that there is fairness between the family
and the charities named in the will.
In this case the gifts were to help plan to minimise the
inheritance tax that would be due following MJL’s death.
There is a huge range of reasons that a deputy or attorney may
consider making gifts, either from capital or from excess income.
It is important to keep in mind that a deputy (or an attorney) has
very limited authority to make gifts without the Court’s
approval. Any deputy or attorney who is thinking about making gifts
from the assets of the person whose money they look after would be
wise to take properly qualified legal advice.
The Court of Protection makes decisions about gifting based upon
the best interests of the person whose money it is. The factors
that will be looked at include how much capital they have, their
income, financial needs, life expectancy, attitude to gifting,
previous decisions made about financial planning before they lost
capacity and also family circumstances. Each case is looked at
individually. A case like this really helps to show how the Court
approaches these applications and this can help a deputy or
attorney decide if it is appropriate for them and the person they
act for.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.