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Section 12 (2) Of MCA 2005
The authority for an Attorney under a property and affairs power of attorney does not extend to disposing of the donor’s property by making gifts except in the situation of:
- Any conditions or restrictions in the instrument itself;
- On customary occasions to persons (including himself) who are related to or connected with the donor; or
- To any charity to which the donor made or might have been expected to make gifts.
And the value of the gift is not unreasonable having regard to all the circumstances, in particular, the size of the donor’s estate.
Customary
Customary occasions means:
- The occasion of a birth, a marriage or the formation of a civil partnership
Or
- Any other occasion on which presents are customarily given within families or among friends or associates.
Gifting Outside Section 12 (2)
If an attorney wishes to make more substantial gifts of the donor’s assets, maybe because of inheritance tax planning or outside of the MCA then an application to the Court of Protection must be made for an order to authorise such gifting.
This can be done under Practice Direction 9F (see Deputyship Pack).
Office Of The Public Guardian Guidance Notes
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