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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25486
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My 95 year-old mother Is in a residential home. Her own home

Customer Question

My 95 year-old mother Is in a residential home. Her own home has been sold and the money has been invested.
Is she able to give my brother and I an annual payment? Is there a limit on the amount given?
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if your mother has mental capacity to make decisions please? In other words is she suffering from any form of dementia that impairs her ability to make decisions bout her affairs?

Joshua :

*about

JACUSTOMER-k6baf9jd- :

Yes. We have joint power of attorney.

Joshua :

Thank you. Is your POA an enduring power of attorney (made pre 2007) or the newer lasting power of attorney made after 2007?

JACUSTOMER-k6baf9jd- :

Yes the new full one

Joshua :

Thanks. Unfortunately 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.

Joshua :

The proposal you make amounts to an advancement of your mothers capital to you and your brother which in law is treated as a gift from your mother to you and your brother. There is detailed provision under s12 Mental Capacity Act in relation to gifts.

Joshua :

The provisions are 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.

Joshua :

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 mother habitually gave herself for birthdays etc. So for example if she 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.

Joshua :

Accordingly the LPAs will not provide legal authority for the action you propose which I assume would be numbered in the thousands. The only way to achieve this legally would be for your mother to make the gifts herself for which she 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 mother wished for the gifts to be made and that having regard to the size of her estate it would be in her best interests for the gifts to be made for example in order to save tax.

Joshua :

The Court of Protection is only interested in the best interests of your mother in respet of any application and will not consider whether the application is in your best interests so the hurdles are difficult to overcome.

Joshua :

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.

Joshua :

You ask whether there is a limit on the amounts you can give. We have touched on this above. The limits are principally set by your mothers habits. If she was in the habit of giving a cheque on birthdays and Christmas this can be continued providing such payments are not disproportionate to the size of her estate. If she was not in the habit of giving such gifts then you could give gifts nonetheless but such gifts should be no more than what one may reasonably expect having regard to the size of her estate and should err on the side of caution in terms of size.

Joshua :

Having said all of the above, there is nothing stopping you investing her money so as to achieve some capital growth (providing you avoid excessive risk) though of course this is not the same thing as having direct access to the funds I accept.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

I'm about to go offline for the evening. Is there anything above I can clarify for you before I go?

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Very disappointed. Thought you would say 3,000 or 7,000 per annum

Expert:  Joshua replied 2 years ago.
I am very soory for the disappointing news. unfortunately, the Court of protection has made very clear that it will not countenance such figures. On top of that, there is also a consideration whereby if your mother's funds may be required for funding residential care in the future, the local authority would oppose payments of almost any significant figure and may attempt to claim such amounts back should there be a future shortfall in care fee funding.