Can I Challenge a Lifetime Gift Made by an Attorney or Deputy?

Attorneys and deputies can make lifetime gifts on behalf of a donor only if they hold powers under a property and finance lasting power of attorney or deputyship order. There are strict rules that apply to gifts made by attorneys and deputies without the approval of the Court of Protection. Any gift must be in the best interests of the donor.  

The scope of an attorney to make a gift is set out in the Mental Capacity Act 2005 (MCA). This limits the ability to make a lifetime gift to making reasonable gifts;

• on customary occasions (family birthdays etc.); and
• charities the donor may have been expected to make gifts to. 

The difficulty an attorney has is what is considered reasonable. 

A deputy’s ability to make a lifetime gift is limited to the provisions set out in the deputyship order. Such provisions usually follow the above guidance of the MCA above. For any substantial gifts, it is necessary to make an application to the Court of Protection for specific approval. 

If you are concerned a deputy or attorney has made a lifetime gift on behalf of the donor that is unreasonable or outside the scope of their authority, it is important for investigations to be undertaken. 

For professional legal advice on initiating an attorney or deputy investigation, call JMW today on 0345 872 6666, or complete our online enquiry form to request a call back from a member of our highly qualified team.