Unless the paperwork says otherwise, an attorney or deputy can only make a gift if it's either:
- to a family member, friend or acquaintance of the person on a 'customary occasion', or
- to a charity that the person might have given to if they had mental capacity
In both cases, it is essential the gift is of reasonable value given the size of the person's estate.
A customary occasion means, for example, a birth, a birthday, a wedding or civil partnership or an anniversary. It also includes occasions where families, friends or associates customarily give gifts, such as Christmas, Eid, Diwali, Hanukkah or Chinese new year.
The gift can't go to a person or organisation unconnected to the gift-giver.
When deciding whether a gift is reasonable, the attorney or deputy should consider:
- whether the person used to give gifts of this value when he/she had mental capacity
- whether the gift might affect the person's ability to meet their living expenses, now and in the future
- the person's life expectancy – and whether they’ll have enough funds for the remainder of their life
- whether the gift reflects the person's will.
Gifts must always be well within what the person can comfortably afford. 'Affordable' varies a lot from person to person. A £200 gift has a bigger impact on someone with £9,000 than someone with £90,000.
Any gifts made on behalf of someone else must be recorded. Deputies need to record gifts in their annual report, and in the case of attorneys, the OPG may ask for gifts made to be accounted for.