Gifting with Power of Attorney

mjg22

Hi,

Sorry if this is the wrong place to post this.

I have Lasting Power of Attorney for my mother and have done so for the last two years. We are currently looking into buying our house and she would like to gift us £50,000 towards it.

The only reason I have the LPA is because she has physical conditions which mean she is no longer able to leave her house and therefore cannot manage her money in branch (and she doesn't have online access or even understand what it is so online banking is a no go).

The decision to gift the money is totally hers. She has full mental capacity and completely understands the amount she is gofting, what it will be used for and that she does not expect it back. She is happy to sign a Deed of Gift which will be drawn up by our solicitor and the signature independently witnessed.

The issue is the money would have to be transferred to our account in branch by myself. Would I be able to do this in branch with the Deed of Gift? I understand that if she did not have mental capacity then I would have to apply to the Court of Protection but this is not the case. She has full mental capacity and has made the decision. I would just be asking for the transfer because she is physically unable to go to the branch and do so.

I just wondered if anyone had any experience or advice? Thank you!

MikeJXE

Doesn’t she have telephone banking ?

mjg22

Unfortunately not. She's only ever banked in branch.

Albermarle

If she lost mental capacity, then there would be no need to go to the Court of Protection.
That is what the LPa being in place is for.
I would guess in this case that if she can talk to the bank over the phone to confirm everything is ok, that should be enough.

Jellynailer

MikeJXE said:

Doesn’t she have telephone banking ?

Or better still a pc with large screen and an ultra secure bank like First Direct.  My family help me set this up when my mobility was declining and the basics were not hard to learn.  I even joined a certain social network a couple of months ago and its great for finding things out and keeping the grey matter honed up.

tacpot12

Have a read of the "Capacity to make gifts" section on this webpage: Giving gifts (web version) - GOV.UK

It say "as an attorney, you are restricted by the legal limits on your gift-making authority, even if the person seems to have capacity and has instructed you to make a gift on their behalf".  So the act of making the gift, i.e. transacting it, is forbidden as well as the act of deciding to make the gift. 

Also, if you read the section on "De-minimus limits" it points out that attorneys should never be acting for the donor when there is a conflict of interest. The section on "Applying to the Court of Protection" confirms that if you want to make a decision where there is a conflict of interest, then you must make an applicaiton to the Court of Protection and wait for the court to rule on it.

She would need to apply to the Court of Protection even if there was another attorney for whom making the give was not a conflict of interest, because that attorney would also be forbidden to transact the gift. 

starving_artist

If register your LPA with the bank you should be able to carry out any transactions on behalf of your mother.  Once they have the LPA recorded you should only need your passport to carry out transactions in branch.  The bank will probably have a special team that deals with LPAs and they are usually helpful.

Brie

I thought that having a POA or LPA was to help make things happen that are in the individual's interest.  I fail to see how this is in her interest for you to receive money.  It's not like you are wanting to transfer some cash to somewhere like a care home that's going to look after her.  

Obviously I might have misunderstood things.....

mjg22

tacpot12 said:

Have a read of the "Capacity to make gifts" section on this webpage.

It say "as an attorney, you are restricted by the legal limits on your gift-making authority, even if the person seems to have capacity and has instructed you to make a gift on their behalf".  So the act of making the gift, i.e. transacting it, is forbidden as well as the act of deciding to make the gift. 

Also, if you read the section on "De-minimus limits" it points out that attorneys should never be acting for the donor when there is a conflict of interest. The section on "Applying to the Court of Protection" confirms that if you want to make a decision where there is a conflict of interest, then you must make an applicaiton to the Court of Protection and wait for the court to rule on it.

She would need to apply to the Court of Protection even if there was another attorney for whom making the give was not a conflict of interest, because that attorney would also be forbidden to transact the gift. 

If what you're saying is correct then that would be preventing me from carrying out the purpose of the LPA - to act on her instructions. Also I fail to see why a court should have any say in what she does with her money when she has the mental capacity to make decisions.

Judging from the replies opinion seems to be split but I just wanted to get some advice before contacting a solicitor and Nationwide.

mjg22

Brie said:

I thought that having a POA or LPA was to help make things happen that are in the individual's interest.  I fail to see how this is in her interest for you to receive money.  It's not like you are wanting to transfer some cash to somewhere like a care home that's going to look after her.  

Obviously I might have misunderstood things.....

She still has mental capacity to make her own decisions so in our case the LPA is simply to allow me to action those decisions on her behalf. What she deems to be in her interest is nothing to do with me.

Keep_pedalling

Brie said:

I thought that having a POA or LPA was to help make things happen that are in the individual's interest.  I fail to see how this is in her interest for you to receive money.  It's not like you are wanting to transfer some cash to somewhere like a care home that's going to look after her.  

Obviously I might have misunderstood things.....

You are totally misunderstanding things. If the OPs mother did not have the mental capacity to manage her finances they certainly would not have the authority to gift themselves a large chunk of money, but that is not the case here it is totally her decision.