Attorneys - are you allowed to accept a gift?

If you have been appointed as a Financial Affairs Attorney under a lasting power of attorney, then you have the responsibility to the donor to act in their best interests.

In many instances, the donor appoints a family member or close friend to look after their finances, for example, pay utility bills or manage their bank accounts. So what happens if the donor wants to reward you financially? Are you allowed to accept the gift?

Firstly, you must consider whether the donor has sufficient mental capacity to make such a gift and secondly whether the gift amount is reasonable. 

You must take particular care if you are an attorney receiving the gift. The Court of Protection may become involved and decide that the gift went beyond your authority. If the Court of Protection feels that the gift is unreasonable then you may even have your role as an attorney taken away from you. This could leave the donor vulnerable if they are not in a position to appoint anyone else as their attorney if they lose mental capacity.

Read more on the guidance issued by The Office of the Public Guardian on making and receiving gifts here. 

The general rule that should be followed is that you must not make gifts from a person’s estate, unless the gifts satisfy the following requirements:-

1. The gift must be of a reasonable size, taking into account the size of the donor’s estate.
2. The gift must be given on a customary occasion, for example a birthday or Christmas etc.
3. The gift must be to someone that the donor has previously supported in the past.

You must also check the Property and Financial Affairs Lasting Power of Attorney, this is to ensure that there are not any restrictions in the document relating to gifting.

It is always sensible to consider seeking professional advice if you are dubious as to whether you can accept a gift from a donor or not.

If you are an attorney and you would like advice regarding how to carry out your role then please contact our lasting powers of attorney experts.  I am based in our Colchester office and can be contacted on 01206 217609 or [email protected].