Permitted Gifting under S12 Mental Capacity Act 2005

Published / Last Updated on 01/11/2019

What is Permitted Gifting under S.12. Mental Capacity Act 2005?   

  • Donor = the person who set up the Power of Attorney
  • Donee = the person appointed to act on behalf of the donor
  • Instrument = the Power of Attorney Document

1) Where a lasting power of attorney confers authority to make decisions about a person's property and affairs, it does not authorise a donee [person acting on your behalf] (or, if more than one, any of them) to dispose of the donor's [person who set up the attorney] property by making gifts except to the extent permitted by subsection (2).

2) The donee may make gifts—

  • (a)on customary occasions to persons (including himself) who are related to or connected with the donor, or
  • (b)to any charity to whom the donor made or might have been expected to make gifts,

if the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of the donor's estate.

3) “Customary occasion” means—

  • (a)the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or
  • (b)any other occasion on which presents are customarily given within families or among friends or associates.

4) Subsection (2) is subject to any conditions or restrictions in the instrument [i.e. the Power of Attorney Document].

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