How to navigate the complex rules of ‘gifting money’ as an Attorney

“I wish someone had told me that being an Attorney meant more than just signing a couple of sheets of paper….”

This is something we hear a lot from Attorneys who acted out of kindness, in agreeing to be named as such, when their relative made out a Lasting Power of Attorney (LPA) all those years ago.

They signed the documents without a second thought. It all looked straightforward enough and, in any case, they never thought they would actually be called upon to act as an Attorney.

But now mum has been diagnosed with dementia and has lost mental capacity to make her own decisions regarding her finances, so the LPA has come into force.

Firstly, a quick recap – what is meant by the term ‘Attorney’?

An Attorney is someone appointed by a Power of Attorney to make decisions on behalf of another.

Although an Attorney does not need to be a relative, in practice, this typically means an adult child. An elderly parent will often request that, in the event they are unable to make their own decisions in the future, their son or daughter will become an Attorney, to deal with property and financial matters and/or make health decisions.

Reliance on you as a care-giver and Attorney

Reliance on your support may start very gradually. As a loved one’s health begins to decline, your need to step in and help moves from the mundane – such as ensuring the house insurance is renewed and hospital appointments are kept – to more wide ranging decisions affecting almost every aspect of your elderly relative’s life.

Before long, health care professionals are telling you that mum has lost mental capacity and are asking whether there is a Lasting Power of Attorney.

Importantly, no one tells you that, at this point, the goals posts have moved. When you make decisions as an Attorney, rather than as a son or daughter, there are laws which strictly govern what ou can and cannot do.

The law relating to ‘gifts’

One of the most important decisions you may need to consider as an Attorney, is the making of gifts on behalf of the ‘donor’ (the term used to describe your relative in an LPA document)

The laws governing the making of gifts on behalf of another are really complicated. Ignore them at your peril because the penalties for crossing the line are very harsh indeed.

Surely a Christmas or birthday present is acceptable?

At Steene Law we are often contacted by people who, in their role as Attorneys, have made Christmas and birthday gifts on behalf of their parents – something their mum or dad would always have done themselves, if they’d had the mental capacity or indeed the ability to write out cheques.

But, now they are facing an official investigation. An aggrieved relative who did not receive a Christmas gift has contacted the Office of the Public Guardian’s Safeguarding Unit, alleging that the Attorney has been acting in breach of their authority!

What do the rules say?

Attorneys are only allowed to make gifts on what are known as ‘customary occasions’, Christmas and birthdays being but two examples.

The Attorney is expected to know that such gifts must be made to someone connected with the person whose money is being gifted, or to a charity that the person has made gifts to previously.

The law rather unhelpfully says that the gift must not be “not unreasonable, having regard to all circumstances, and in particular the size of the individual’s estate”.

What does this mean in practice?

It all depends on your relative’s assets and, more importantly, their outgoings which are needed to cover their own care and living expenses.

We have been able to successfully argue that gifts of £20,000 are reasonable and can be made by the Attorney. Equally, we have had to advise that gifts of £100 cannot be made.

Worst case scenario – what happens if money is wrongly gifted?

It is important to remember that the OPG has a power to investigate. If they decide the gift was made unlawfully they could report the Attorney to the Police and issue proceedings to recover the money that was gifted. It makes no difference if the money has already been spent – we know of instances where proceedings to recover ‘gifted money’ has result in bankruptcy proceedings.

The safest advice, we can offer to any Attorney is this:

If you are considering making a gift and you are unsure about the rules, seek our expert advice first, rather than becoming entangled with the Office of the Public Guardian (OPG).

If you have already made a gift and the OPG is now alleging that you have misused your powers as an Attorney, call us urgently for a free initial conversation, to find out how we can help.

Please don’t wait until it’s too late. Pick up the phone and call us on 0203 653 0623 for a free, initial telephone conversation.

We are available from 8am to 7pm, Monday to Friday and will explain your options including how you can fight an unfair OPG enquiry.

Mike Crawford

16 January 2024

I cannot speak highly enough of the helpfulness, professionalism and most of all the empathy shown by David Steene in my recent correspondence with him. My sincere thanks and I would honestly recommend this Firm to others without hesitation.

Jane James

6 January 2024

I cannot thank Mr. David Steene enough, a wonderful, kind and genuine gentleman who always had time to listen and had great compassion. I had never heard of deliberate deprivation of assets until I was accused of it, by my Local Authority. Brought about when my mother had to go into a care home, she'd had a mild stroke and early onset dementia, aged 92. I knew that this accusation was untrue, it was unkind, extremely stressful and had a huge impact on my family, including my mother. I sought help from Mr. Steene, to prove my innocence and hep my family. I chose his company, as they were experts in this field and already had brilliant reviews. Mr. Steene listened to what I had to say, was interested and asked me appropriate questions. He had so much information and knowledge with regards to Local Authorities and DOA, which he kindly explained to me in understandable words. Mr. Steene advised me what to do and to get back to him if I required further help. The phone call was followed up with a comprehensive E mail. My battle with the Local Authority commenced. After 13 months the accusation of DOA was dropped. I could not have fought this battle without knowing that Me. Steene was always available when I required further help and advice. He always answered me with professionalism. He would have taken on the case if I had failed. Mr. Steene pointed me in the right direction and gave me the encouragement and confidence that I needed. I cannot thank him enough. The receptionists who answered the phone, were always professional and helpful and always took a detailed message to pass on to Mr.Steene. A wonderful team, an efficient, professional company. I highly recommend them. A photo of my mum and my son. We are human beings.

Marcus Mackay

14 December 2023

David and Dianne provided myself and the rest of the family with sound advice in a thoughtful and genuinely caring way. While clearly expert in what he does, talking to David was like dealing with an old friend. In our case, my father had Alzheimer's and we needed to organise care, David and Dianne provided invaluable advice on how to navigate through the UK's dysfunctional NHS and adult "care" system in order to get the best possible support. As a word to the wise, be prepared for a battle and I am sad to say it, do not trust anything the council or NHS workers say, they are under immense pressure to get you to sign documents which will give them control of the situation and their only metric of success is to get hold of your money and have you pay for your care! Clearly looking after my father was our number one priority, but money does matter especially as care costs can easily exceed a thousand pounds a week. This means that the money my father had saved through his long working life was being burned through at a ferocious rate, so slowing down the council was key to ensuring that they couldn't eat into the value of my mother and father's house. It is disgusting that successive governments haven't put a cap on the amount you are expected to pay for care. I have no interest in inheritance, but I don't want my mother to be worried about owing the council money in her final years. So back to David and Dianne, they will both help you in their fields of expertise, but also point you to other aspects of the situation such as legal matters that you may want to consider. In the end, it is all about looking after people when they are at their time of greatest need and against that measure I can't think of a more capable, dedicated and compassionate couple than David and Dianne. This is a picture of my father and mother just as Alzheimers took hold of my father 5 years ago, he died on the 5th of December 2023.

warren appleby

11 December 2023

It was David's advice and knowledge that guided me through the OPG forms. He gave me confidence that I could deal with this on my own! I went on to prove my case with no further action taken! Highly recommend!!

Avis Caddy

3 November 2023

The law around paying care home fees is complicated. We were faced with a Local Authority who refused to give us a property disregard. We called David, and he told us on that first call that we would win, and he would succeed in a care home fees property disregard application. Our Local Authority dug their heels in, and each time they said no, David and Dianne, who are expert solicitors in paying for care fee law, explained why we were right, and why the care fees property disregard applied, and why the Local Authority were wrong. We won! The property was disregarded for care fees. David succeeded in getting the relatives’ property disregard which meant that our family member is secure in their care home, and we will not lose the roof over our heads. David, we can't thank you enough!

Lesley Mckenzie

14 September 2023

Had a particular problem with social services trying to claim a contribution towards my ex-husbands care after separating some 10 years ago but without divorcing. David reassured me that I was not liable so very grateful to him and explained the process going forward. Invaluable help cannot thank him enough

Mike Bravery

17 August 2023

I emailed David Steene late one evening and he kindly called me am the next ...excellent response. David was very professional and my question in his opinion would be better answered by another company. David sent me the appropriate link. He also reassured me that if I needed his expertise he would be very pleased to hear from me. Excellent service thank you David

andrew fry

14 August 2023

David and his wife gave us unprecedented realistic advice and clearly out too help people not take advantage of them. Many Thanks We hope to be in contact again shortly

Jean M Sheaf

7 August 2023

David acted on our behalf to petition our local authority to reconsider their incorrect decision of deprivation of assets, where monies were gifted before care was needed. He was honest, thorough and professional throughout. We would heartily recommend him to fight your case if you have also fallen foul of the system like we did.

Barton Bank

3 August 2023

I have spent over forty years working in law but a care issue arose that was well outside my area of expertise. I emailed Steene Law as they specialise in the area of care law and David Steene responded immediately. He provided excellent and timely advice on a number of occasions and, when a dispute with the local authority over care costs came to a head, one email to the LA from David caused them to immediately back down. I have no doubt that, without his assistance, the LA would have stood their ground. I shudder to think how unrepresented family members are treated by local authorities. If you are ever in a situation concerning care for a loved one do not try and do it yourself. Get a solicitor and, if possible, get this firm.

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