The Office of the Public Guardian (OPG) published guidance in
May for property and financial affairs attorneys and deputies on
making gifts on behalf of the person for whom they act. Other than
normal and reasonable gifts for Christmas and birthdays etc, many
gifts must be authorised by the Court of Protection.
The guidance explains what counts as a gift, who can make gifts
for someone else and when, and to whom gifts can be made. It also
explains that if an attorney or deputy wants to change the limits
on gifts, they must apply to the Court of Protection, and warns of
the consequences of making an unauthorised gift.
When reviewing estate accounts it may well be appropriate to ask
questions about gifts made from the donor's estate as those
made without the authority of the Court may be open to challenge
and funds due to the estate. Click here for the guidance.
The OPG has also published a practice note on its approach to family care
payments (otherwise known as gratuitous care payments) that Court
of Protection deputies make to family members who are providing
care to someone lacking mental capacity (P).
It sets out a definition of family care, the legal framework,
when the Court of Protection's authority is needed, factors
deputies must consider when deciding whether payments are in
P's best interests, approaches for calculating the level of,
increases in and frequency of payments, record keeping, reviews and
how family care payments may be taxed.
The guidance applies to deputies appointed by the court. Whether
the guidance applies to attorneys acting under a lasting or
enduring power of attorney depends on the terms of the specific
powers granted. Even when the guidance does not apply, attorneys
may still find it useful to refer to it.
The guidance advises deputies and attorneys when an application
to the Court of Protection is needed to approve such family
payments. Although in many circumstances court authority may not be
needed, if it is clear in the context of an estate that such
payments have been made during the donor's lifetime, the
question could be raised as to how these payments have been
authorised under the deputyship or attorneyship to ensure that
payments made had been correctly made from estate funds.
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.
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The well documented case of Heather Ilott and her attempt to overturn her Mother's will appears to have come to an end with the Supreme Court ruling that, whilst she may have be granted some money from her Mother's estate, it is a far smaller sum than the Court of Appeal awarded.
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