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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Can I make a gift to all people named in my dads will even

Resolved Question:

Can I make a gift to all people named in my dads will even though hes still alive, Iam his power of attoney
Submitted: 1 year ago.
Category: Family Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I ask if you operate under a lasting power of attorney or the older enduring powers of attorney that were granted before 2007 please?Does your dad have capacity and if so does he want to make the gifts you refer to?
Customer: replied 1 year ago.

lasting power of attorney

not of sound mind now.when we discussed his will before he felt strongly

that his grandchildren and great grandchildren should benefit.

Expert:  Joshua replied 1 year ago.
Thank you for this. The first issue is in respect of your fathers will. Your fathers will has no legal force whatsoever whilst your father is alive and the provisions cannot be exercised until the testator has passed away so it does not assist here. As regards ***** ***** can make gifts under your power of attorney LPAs - being the type that are made after 2007 - are made under new legislation which is more restrictive in the powers an attorney can exercise. The provisions are set out in the Mental Capacity Act as follows:The recipient of the gift must be either an individual who is related to or connected with the donor (including the attorney(s)), or a charity to which the donor actually made gifts or might be expected to make gifts if they had capacity.The timing of the gift must occur within the prescribed parameters. A gift to charity can be made at any time of the year, but a gift to an individual must be of a seasonal nature, or made on the occasion of a birth or marriage/civil partnership, or on the anniversary of a birth or marriage/civil partnership.The value of the gift must not be unreasonable having regard to all the circumstances and in particular the size of the donor's estate.In plain english what this means is that as an attorney you have a power to make gifts of roughly commensurate size to those gifts your father habitually gave himself for birthdays etc. So for example if he habitually gave you £100 for your birthday you could continue this practice. A judge has given additional guidance to the act which is that any gift of more than a couple of hundred pounds would generally be considered outside of an attorneys powers without considerable evidence to the contrary. Accordingly I regret that an LPA will not provide legal authority for any action to make substantial giftsbeyond the relatively limited provisions provided for above. The only way to achieve this legally would be for your father to make the gifts himself for which he would need capacity or for you to obtain an order from the Court of Protection which is unlikely to be granted unless you can show that your father wished for the gifts to be made and that having regard to the size of his estate it would make no difference to his welfare and would be in his best interests for the gifts to be made for example in order to save tax. The Court of Protection is only interested in the best interests of your father in respet of any application and will not consider whether the application is in anyone elses best interests so the hurdles are difficult to overcome. If you go ahead an make the payments anyway, they are likely to be unlawful. Nothing may happen, as it typically relies on someone to raise concerns for the matter to be investigated, but were someone to do so, it is not likely you would be able to defend the payments and would likely be ordered to return the payments and face a possible enquiry as to whether the power of attorney should be revoked. In extreme cases, police can be involved if fraud is suspected so payments should not be considered lightly. I am sorry that this may be not what you might hoped to hear but I hope it clarifies your position and powers available to you. Certainly there is little problem giving limited customary gifts to relatives for birthdays and so on though subject as above. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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