Charitable Gifting On Behalf Of Someone Who Loses Mental Capacity, Can This Be Done?

Whether you are acting as an attorney or deputy, gifts being made to charities on behalf of the vulnerable adult can be an essential part of your role.

Thinking of making a gift is a very personal decision, why do you make it and how much to spend is always at the front of your mind. The thought of making gifts on behalf of someone else can be quite daunting, but gaining an understanding of how they have gifted in the past can be essential to ensure that as an attorney or deputy you are not acting outside the scope of your authority.

Making charitable gifts as a deputy or attorney

Gifting as a deputy or attorney must always be done in the vulnerable adult’s best interest and more usually is a continuation of what they have done prior to a loss of mental capacity in making these decisions themselves.

This includes gifts on customary occasions such as birthdays, but also regular gifts to charities or one-off annual donations.

The decision to make gifts continues to be the vulnerable adults until they are unable to make the decision themselves. The loss of mental capacity can occur due to an impairment of the brain or mind, such as a diagnosis of dementia, Alzheimer’s or an injury to the brain following an accident.

As an attorney or deputy, it can always be worth gaining a mental capacity assessment if you are unclear whether the vulnerable adult continues to have the necessary capacity to make the decision.

However, as an attorney or deputy you have additional areas to consider, such as affordability or whether the gift may be perceived as a deprivation of assets. These areas may become more prevalent as the vulnerable adult requires more care and could result in you deciding the gift can no longer be made.

Guidance

As an attorney or deputy your gifting authority is restricted by the Lasting Power of Attorney or Court Order you are acting under, therefore, it is always worth considering advice as you may discover the gift is outside the scope of your authority. The Office of the Public Guardian (OPG) has produced guidance for gifting which can be found here.

Gifting to a friend, family or charity outside the scope of your authority can result in an investigation by the OPG, therefore, if you are uncertain about the gift being made, seeking legal advice before making the gift could be essential to ensure you are not in breach of your obligations and duties.

Remember some gifts and larger charitable donations may need approval from the Court of Protection.

charitable gifts deputy attorneyHow can Nelsons help?

Gemma Hopper is an Associate in our expert Court of Protection team.

If you have any questions in relation to subjects discussed in this article, then please contact Gemma or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.