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Court judgment emphasises the link between gifting and best interests.

In a recent case before the Court of Protection Judge Hilder provided an excellent analysis of the relationship between gifting and best interests.

The case, rather unexcitingly called In the matter of various lasting powers of attorney, was brought by the Office of the Public Guardian, who asked the court to consider whether instructions and preferences set out in eleven lasting powers of attorney, to benefit someone other than the donor (the person who made the lasting power of attorney) were lawful. The judgment acknowledges that ‘best interests’ means more than personal self interest, and that for many this includes looking after the welfare of other family members.

However, the powers given to attorneys to provide for others on the donors behalf are still limited by the Mental Capacity Act. The judgment concluded that any instructions or preferences in a lasting power of attorney that are incompatible with the law should be struck out, before the power of attorney can be registered. It also provided a useful flowchart governing the rules of gifting, which we have expanded slightly and which will be freely available to those attending our annual conference.

Making a Lasting Power of Attorney is vitally important in ensuring wishes will be respected should an accident or ill health prevent a person from making decisions in the future.

If you have any questions about gifting and the roles of an Attorney, speak to our Court of Protection Team on 01926 354704 or email: 

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