Making gifts or transferring assets can be a meaningful way to honour someone’s wishes or provide for loved ones. But when the individual lacks the mental capacity to make these decisions themselves, the process becomes more complex.
Whether you’re acting as a deputy, attorney, or close family member, ensuring these decisions are legally sound and in the person’s best interests is essential.
At Anthony Gold Solicitors, we provide clear, compassionate guidance to help you navigate the rules around gifts, transfers, and statutory wills, including when and how to seek court approval. With our support, you can act with confidence, knowing you’re doing the right thing for the person you care for.
When acting on behalf of someone who lacks mental capacity, it’s important to understand the boundaries of your legal authority as a deputy or attorney. The law ensures that any decisions you make prioritise the individual’s best interests, including those involving gifts or financial transfers.
As a deputy or attorney, you may have limited powers to make certain types of gifts without needing court approval. These include:
However, these actions must align with two key principles:
To determine whether a gift is reasonable, you’ll need to consider a number of things:
However, even where consideration of the above factors suggest that it is in the person’s best interests to make a gift, where the gift is over £3,000, it is possible that Court of Protection authority will be required, and specific, specialist legal advice should be sought before a gift is made.
There are strict restrictions on gifts and transfers that fall outside of what is deemed ‘reasonable.’ Whilst the below list is not comprehensive, deputies and attorneys cannot usually:
For these actions, you will usually need to seek court approval through the Court of Protection, although there can be some exceptions where the person provided support to another person whilst they had capacity to do so. Please get in touch with us if you want to discuss any proposed transfer of funds or assets away from a person that lacks capacity.
Even when you believe a gift or transfer is reasonable, interpreting the rules can be challenging. Missteps can lead to disputes or legal consequences. Seeking advice early helps ensure:
By consulting experienced solicitors, you can avoid potential pitfalls and make informed decisions that honour the individual’s wishes and needs.
Certain decisions regarding gifts or transfers go beyond the authority of deputies and attorneys, even when made with the best intentions. In these cases, the Court of Protection must step in to assess and approve actions that could have a significant impact on the individual’s finances or future.
You will need to apply to the Court of Protection if you wish to:
Make a large or unusual gift: Examples include transferring property at undervalue, gifting substantial sums of money in excess of £3,000 per annum or where it is not reasonable in line with their estate, or providing financial support that doesn’t align with the individual’s prior habits.
Create or amend a statutory will: A statutory will is a legal document made on behalf of someone lacking capacity. This is often necessary if:
Undertake financial arrangements with long-term implications: This could include significant investments, investments that are not in line with the person’s overall circumstances, or loan entering into agreements.
Engage in financial planning where there is a conflict of interests between the person and the attorney or deputy, that cannot be managed.
The Court of Protection will carefully review applications to determine whether the proposed action is in the person’s best interests. The court considers factors such as:
This process ensures transparency and protects the individual from financial harm or exploitation.
Seeking court approval involves submitting a detailed application, including:
Once submitted, the court may ask for additional information or arrange a hearing if the application is complex or disputed.