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:
These considerations protect the person’s assets and ensure their best interests are upheld.
There are strict restrictions on gifts and transfers that fall outside of what is deemed ‘reasonable.’ Deputies and attorneys cannot:
For these actions, you will need to seek court approval through the Court of Protection.
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, gifting substantial sums of money, 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 or loan agreements.
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.