What gifts can attorneys make?

Last verified: 4 December 2025 (England & Wales)

Many families quietly help each other with money: a standing order to a child, a “thank you” transfer for shopping or care, or Christmas envelopes for grandchildren.

While you have mental capacity, you can usually make these decisions yourself. The problem comes later if you lose capacity and someone else has to justify those payments to the Office of the Public Guardian (OPG) or the Court of Protection.

The way you give now, and the records you keep, will shape how easy life is for your future attorneys.

Key idea: Plan now so that your generosity can continue safely if someone else has to manage your money.

This article is written for people who:
• do not yet have Property and Financial Affairs LPAs in place
• are already giving money or support to family or carers
• want to keep that generosity safe and compatible with OPG rules on gifting and family care payments.

Quick-read summary

• Attorneys can only make small, reasonable gifts on “customary occasions” to people or charities connected with you, and only if those gifts are affordable and in your best interests under the Mental Capacity Act 2005.
• Larger, unusual, tax-driven or conflict-of-interest gifts usually need Court of Protection approval.
• OPG’s guidance on gifting and its separate guidance on family care payments both expect clear records of what was paid, to whom, why, and how it was affordable.
• If you lose capacity without LPAs in place, your family may have to apply for deputyship and then justify years of past gifts and payments.
• Putting LPAs in place now, and using a simple spending and gifting log, makes it much easier for future attorneys to show they are following the rules and respecting your wishes.
• Fern Wills & LPAs has created an Attorney Spending Log as part of our Life & Legacy Logs series, designed to give attorneys an OPG-friendly record of every gift and payment.

Why this matters before you even have an LPA

When you have capacity, you are free to be generous. You can give, lend, forgive and support as you see fit, so long as you understand what you are doing.

The legal position changes once you need help with decisions. At that point:
• attorneys (under an LPA) must follow the Mental Capacity Act 2005
• the Office of the Public Guardian can investigate if someone is worried about misuse of money
• past and present gifts can be examined and, if necessary, challenged.

If your older gifts look irregular, undocumented or “too generous”, your attorneys may have to repay money or ask the court to approve what has already happened. Good planning and clear records now make those conversations much easier later.

If nobody can explain past gifts clearly, attorneys are more exposed, and investigations take longer.

What your future attorneys are actually allowed to do

Under section 12 of the Mental Capacity Act 2005, attorneys can only make gifts that meet three tests:

• Occasion: a “customary occasion” such as a birthday, wedding, civil partnership, or major religious or cultural festival.
• Recipient: a person or charity connected with you (family, close friends, or charities you support).
• Amount: reasonable and affordable, after looking at your overall estate, income, likely care costs and life expectancy.

Anything outside that framework is either risky or likely to need Court of Protection approval. That includes, for example:

• large transfers or regular payments that feel like income
• house deposits or “levelling up” between children
• tax-driven schemes using your money
• gifts or benefits for the attorney themselves.

The law is deliberately tight because attorneys are dealing with someone else’s money. The safer your patterns and records look, the easier it is for attorneys to show they are acting properly.

Practical checklist: can my attorneys make this gift?

Use this as a sense-check if your future attorneys ever ask “Can we do this?”:

Capacity first
If you still have the capacity to decide about this gift, you should make the decision yourself. If you do not, attorneys must follow the Mental Capacity Act 2005 best-interests rules.

Customary occasion
Is this for a birthday, wedding/civil partnership, major religious or cultural festival, or something similar? If not, it is unlikely to be an ordinary “customary occasion” gift.

Connection
Is the gift to a person or charity connected with you – family, close friends, or a charity you support?

Reasonableness and affordability
Is the amount modest compared to your estate, income and likely care costs? Would an independent person think it was sensible?

Pattern and past wishes
Have you given this kind of gift regularly before, and have you said you would like it to continue if you need help in future?

Red flags
Is this large, unusual, tax-driven, meant to “even things up” between family members, or benefiting the attorney personally? If yes, this is likely to need specialist advice and possibly a court application.

Records
Will your attorneys be able to show, on paper, what was given, to whom, for what reason, and how they checked affordability?

If any of these points makes you uneasy, the safest default is: do not make the gift yet; get advice.

What to consider before you give

Before making any significant gift – now or through future attorneys – it helps to think about:

Your needs
What you might need for living costs, care and emergencies over the rest of your life.

Your wishes and values
Who and what you want to support, and what would feel fair between family members.

Your current pattern
What you already give regularly (for example, birthdays and charities) and whether this remains affordable.

Affordability in bad years
Whether the gift would still feel sensible if investments fell or care costs rose.

How it will look later
If OPG or the Court of Protection saw only your bank statements and your log, would this gift look reasonable or like a problem?

How to keep your current gifting safe and future-proof

Step 1: Map what you are doing now

Start by writing down:
• regular gifts you make (for example birthdays, Christmas, religious festivals, standing orders)
• one-off bigger gifts in the last few years (house deposits, large loans, debt repayments)
• any payments to family members for care, shopping or support.

You do not need complex paperwork. A simple table is enough: date, who, amount, reason.

Even while you have full capacity, a basic record gives your future attorneys something solid to point to if OPG ever asks questions.

Step 2: Sense-check against the rules your attorneys will face

Ask yourself, “If my attorneys had to repeat this pattern, would they be allowed to?

”Future attorneys will have to show that:
• birthday and Christmas gifts are modest and in line with your means
• charity donations match what you have usually done
• any payments to carers are fair, affordable and documented (hours, tasks, rate)
• bigger or unusual gifts have been weighed carefully, not just done “because we have always done it”.

If you are unsure whether a pattern would fit inside the statutory gifting rules, treat it as a sign to get advice and possibly plan for a future court application.

Step 3: Put LPAs and a spending log in place

Putting Property and Financial Affairs LPAs in place while you are well means you can:
• choose trusted attorneys rather than leaving it to the court
• explain, in plain language, what you are happy for them to continue
• say clearly what should stop if money becomes tight or care costs increase.

Alongside the LPA, you can start using a structured log straight away.

The Fern Wills & LPAs Attorney Spending Log is designed to:
• track day-to-day spending and gifts in one place
• capture the key questions for each entry (who, what, why, how affordable, best-interests factors)
• continue seamlessly when attorneys step in, so there is no “gap” in the audit trail.

Good records are your attorneys’ best protection. They reduce stress, shorten investigations and show respect for your wishes.

Gifts versus family care payments

Many families do not see payments to a son or daughter who gives up work to care as “gifts”. OPG’s guidance on family care payments recognises this and sets out factors for cases where a relative is paid for care.

Attorneys can use the same thinking when planning future arrangements, but should still be ready to seek court approval for anything significant or long-term.

Again, records matter. If you expect family care to be part of your future, a spending and care log makes it much easier to show payments are justified, not hidden gifts.

Cases

Case 1 – “Just helping with shopping”

Jane has always done her mum’s supermarket shop using her mum’s debit card. She adds a few bits for herself and rounds up the numbers in her head.

When her mum later loses capacity, Jane registers an LPA with the bank. A routine review flags years of “mixed” spending and cash withdrawals with no notes. It looks like Jane might have been using the card for her own benefit.

If Jane and her mum had used an Attorney Spending Log from the start, with simple entries like “Weekly shop – £70 Mum, £15 Jane (reimbursed)”, the same bank review would look very different.

Case 2 – Generous grandparents and no paper trail

Mr and Mrs H send £200 to each grandchild every birthday and Christmas. They are not wealthy, but their home has risen in value and they want to see the children enjoy some of their money.

Mr H later develops dementia and loses capacity. No LPAs are in place, so their daughter must apply for deputyship. OPG asks for details of past gifts and how they were afforded. All the family can show are bank statements with “gift” in the reference.

With LPAs, written wishes and a clear log of affordability and intention, the same pattern would likely be seen as reasonable and in keeping with their values.

Case 3 – House deposit expectations

Mr K helps his first two children with large house deposits while he is fit and well. There is no written explanation. His third child already owns a property.

Years later, after a stroke, Mr K loses capacity. His attorneys are asked by the third child to “make things fair” using Mr K’s money. They feel trapped between the law and family pressure.

If Mr K had set out his thinking at the time – in his LPA guidance and in a short note stored with an Attorney Spending Log – his attorneys could point to his clear intention and concentrate on what is affordable and lawful now.

Case 4 – Informal family care payments

Mrs T pays her son £100 a week as a “thank you” for daily care, using a standing order. There is no record of the hours he spends or the tasks he does. When Mrs T loses capacity, attorneys take over under an LPA. OPG later reviews the account and challenges these payments.

If Mrs T had taken advice earlier, put LPAs in place and used a log to record care hours, tasks and how the weekly amount was agreed, it would be far easier to show that the arrangement was fair, affordable and in line with OPG guidance.

Case 5 – Charity giving that stops overnight

Mr and Mrs A have given £1,000 each year to two charities they care about for decades. When Mrs A loses capacity, her attorneys stop the donations because they are worried about “getting into trouble”.

If the couple had LPAs, written wishes about charity giving, and a record of donations that showed affordability, the attorneys could have continued reasonable annual gifts with confidence. The charities would not suddenly lose support, and the attorneys could show they were honouring Mrs A’s values.

Do OPG rules apply before I have an LPA?

The strict gifting limits apply to attorneys and deputies when they are acting for you. But anything you do now may be looked at later if there is an investigation, so it makes sense to follow the same principles: best interests, affordability and clear records.

Will my attorneys be able to continue my current gifting habits?

Only if they fit within the legal rules: customary occasions, people or charities connected with you, and reasonable, affordable amounts. Larger or unusual gifts may need court permission, even if you always did them yourself.

Why is record-keeping such a big deal?

Because in any investigation the question is not just “Was this sensible?” but “Can anyone show what was done and why?”. A simple log that records dates, amounts, recipients, reasons and affordability makes your attorneys’ life easier and reduces the risk of challenge.

Do we always need to go to the Court of Protection for bigger gifts?

Not always, but more often than people expect. If a gift is more than modest and routine, or if it benefits the attorney or changes how your estate would pass, assume you may need specialist advice and possibly a court application.

Optional technical notes

• The main statutory gifting provision for attorneys is section 12 of the Mental Capacity Act 2005. It allows only limited gifts on customary occasions, to connected persons or charities, and only for reasonable amounts.
• OPG’s published guidance on gifting and its guidance on family care payments explain the legal framework and OPG’s expectations of attorneys, particularly around best interests, affordability and record-keeping.
• Courts have accepted limited “de minimis” gifting in larger estates, often aligned with Inheritance Tax allowances, but only where conditions are met, and the person’s needs and wishes are properly considered.
• Deputies are outside the main focus of this article but are subject to the same underlying principles. Their authority comes from Court of Protection orders, read alongside the Mental Capacity Act and OPG guidance.

Next steps

If you are already giving money or informal care support and do not yet have LPAs in place:

• Review your current gifts and payments using the three tests: occasion, connection, and affordability.
• Put Property and Financial Affairs LPAs in place while you have full capacity.
• Start a clear, OPG-friendly record straight away using a structured tool such as the Fern Wills & LPAs Attorney Spending Log in our Life & Legacy Logs series.

A short planning meeting now, plus a simple log, can save your attorneys from stress, delay and investigation later – and helps ensure your generosity continues in a safe, controlled way if you ever need someone else to manage your finances.