What gifts can attorneys make?

Author: Chris Watts, Will Writer, Fern Wills & LPAs

Last verified: 15 August 2025 (England & Wales)

Quick-read summary

Attorneys and deputies can make small, affordable gifts on “customary occasions” (like birthdays or weddings) to people connected with the donor — but only if it’s reasonable and in the person’s best interests.

Always check capacity first and involve the person as much as possible when deciding. Keep clear records showing how you considered their wishes, needs, and finances.

There is a narrow, judge-made “de minimis” tolerance for very small gifts in larger estates, often mapped to IHT allowances — but it only applies if strict conditions are met. When in doubt, apply to court.New in 2025: OPG updated guidance on family care payments (payments to relatives providing care). This is separate from “gifts” and has its own rules — many cases still need court approval.

Practical checklist (Can I make this gift?)

• Capacity check: If the person (the “donor”) has the capacity to make the gift, they should make it. If not, you must follow MCA best-interest rules and only make gifts within your authority. Document everything.
• Is it a “customary occasion” gift? Birthdays, weddings, religious festivals/holidays, or a donation to a charity the person supports. If yes, and the amount is reasonable, it may be allowed.
• Reasonableness & affordability: Consider estate size, income, care costs, life expectancy, past gifting habits, and the donor’s wishes. If you’re unsure, apply to court.
• Red flags (court needed): Loans, large or unusual gifts, property transfers, selling below market value, or any potential conflict of interest (including gifts to yourself).
• De minimis? Only if strict conditions are met (typically larger estates; modest values). If there’s any doubt, treat it as court-required.
• Record-keeping: Note capacity, involvement, best-interest factors, occasion, recipient, amount, and how affordability was assessed. Deputies should also report gifts in annual returns.

What to consider (before you gift)

• Legal framework: MCA 2005 governs gifting authority for attorneys under LPAs and EPA attorneys (Schedule 4); deputies rely on terms of their court order and MCA principles.
• Best interests: Weigh the donor’s wishes/feelings, prior habits, needs (including likely care costs), impact on inheritance, and estate sustainability.
• Customary occasion + connection + reasonable amount: All three must be satisfied for LPA attorneys; EPAs are similar but slightly narrower.
• When the court steps in: Only the Court of Protection can authorise gifts outside the statutory limits; procedures are in Practice Directions 9A and 9D (short-form route for routine/small applications).
• IHT context: The nil-rate band remains £325,000 and is frozen for the coming years. Don’t let “tax planning” drive gifts that fall outside your legal authority.

How this works in real life

We recently helped “Mr B’s” daughter, appointed as his Property & Financial Affairs attorney. Mr B had always given £50 birthday gifts to his three grandchildren and donated £100 each Christmas to a local hospice. After a dementia diagnosis, his daughter wanted to keep these traditions going.

We reviewed his capacity, estate, and care projections. The gifts were customary, connected, and affordable; they also matched his past pattern. We set up a simple gift log and added a short note in his care file. No court application was needed — and his daughter felt confident she was doing the right thing, the right way.

FAQs

1) Can we use the £3,000 IHT annual exemption without going to court?

Sometimes — but only where the de minimis conditions apply (typically a larger estate, modest values, affordability, and no evidence the donor would object). This approach stems from case law and OPG commentary, not statute, so be cautious and document your reasoning. If unsure, apply.

2) What counts as a “customary occasion”?

Births, birthdays, weddings/civil partnerships, major religious or cultural festivals, and donations to charities the person supports. Even then, the amount must be reasonable for that person’s circumstances.

3) Can I accept a gift from the donor as their attorney?

Only if it fits the customary occasion + connection + reasonable test. Gifts to yourself are high-risk for conflicts; if there’s any doubt, seek an independent view and apply to court.

4) Do “maintenance” payments to family members count as gifts?

Not necessarily. Courts have distinguished maintenance/needs from “gifts.” However, it’s a grey area and often requires court authority unless clearly within accepted parameters. See also 2025 OPG guidance on family care payments.

5) What happens if an unauthorised gift is made?

OPG can investigate and ask you to repay funds, seek your removal, require you to apply for retrospective approval, or refer matters to the police in serious cases.

6) Which forms and rules apply if I need to go to court?

Use COP1 to start proceedings. See Court of Protection Rules 2017, PD 9A (the application form) and PD 9D (short procedure for routine/small applications by existing attorneys/deputies).

Optional Technical Notes (for those who want the detail…)

• Statutory limits (LPA/Deputy): MCA 2005 s.12(2) permits only customary-occasion gifts to connected persons/charities of reasonable value. Deputies typically have a similar general authority within their order. EPAs: Sch 4 para 3 (narrower wording).
• “Reasonable” isn’t defined: You must justify affordability and best interests; OPG won’t set figures.
• De minimis: Court has tolerated modest gifting (often aligned to IHT allowances) in larger estates, but with strict conditions and exclusions (e.g. loans/conflicts). See MJ and JM v Public Guardian [2013] EWCOP 2966 and Public Guardian v C (Buckley) [2013].
• Maintenance vs gifts: Courts and OPG guidance support limited maintenance for dependants in some circumstances; tread carefully and document best-interest analysis.
• Process: Apply via COP1; PD 9A explains applications; PD 9D provides a short procedure for routine/small applications. Rules consolidated in Court of Protection Rules 2017.
• IHT context: Nil-rate band £325,000 (frozen), residence NRB £175,000. Don’t assume tax allowances permit gifts that exceed your legal authority.

Sources & further reading

• Mental Capacity Act 2005 — legislation.gov.uk
• GOV.UK — Giving gifts: guidance for attorneys and deputies (updated 2024)
• Court of Protection Rules 2017 — judiciary.uk
• Practice Direction 9A — Applications to the Court of Protection
• Practice Direction 9D — Applications by existing deputies and attorneys
• Inheritance Tax thresholds — GOV.UK/HMRC
• Case law: MJ and JM v Public Guardian [2013] EWCOP 2966; Public Guardian v C (Buckley) [2013]

In summary

The law gives attorneys and deputies only limited powers to gift — and that’s for good reason. Even small gifts can cause disputes or drain funds needed for future care.👉 If in doubt, don’t give it — document it, and ask for help.

At Fern Wills & LPAs, we specialise in helping families balance generosity with protection. We’ll help you check what’s allowed, prepare a simple gift log, and apply to the Court of Protection if needed. That way you can continue family traditions without putting yourself at risk.

📞 Next step: If you’re unsure whether a gift is safe or court-approved, get in touch. One conversation now could save you — and your family — serious trouble later.