You have applied to the Court of Protection to become a Deputy and they have approved you in post. You now have responsibility for the property and financial affairs of another and feel that perhaps over the years they have not made as much use of inheritance tax mitigation as they might have done. It is not a mistake you would make so surely this would justify taking matters in hand for them too.
In dealing with this issue the Court of Protection made it clear that we should accept that what is true for Deputies is also true for those acting as Attorneys under a Lasting Power of Attorney. The Court was at pains to point out that Deputies and Attorneys should realise that they only have limited authority to make gifts and that in appropriate circumstances they should apply to the Court for more extensive gift making powers. Senior Judge Lush made it clear that while managing your own money is one thing managing someone else's is an entirely different matter. Unfortunately most Deputies and Attorneys labour under a misapprehension that they are authorised to act as the individual themselves and not in the more objective quasi trustee approach that is really required. The long and the short of it is that while small gifts such as the £3,000 per annum gift allowance would be acceptable larger sums are unlikely to be so in most cases without the permission of the Court.
A holistic approach is required in my view. As such we are advised that a gift must be of a value that can be described as not unreasonable and this is to be determined by taking into account all the circumstances with an emphasis on and a reference to the size of the individual's estate. If there is any doubt the advice must be not to act unilaterally with a view that you can do as you would like but to ask the Court for permission. I might say that mightn't I? However, surely it is better to be safe than sorry all matters involving decisions about the money for those for whom you act if the gifts or sums involved take you beyond the norm. As always these matters are a question of fact and degree but make no assumptions when acting for others.
Re GM: MJ and JM v The Public Guardian (2013) EWHC 2966 (COP), (2013) MHLO 44 "The applicants ... have applied to the court for the retrospective approval of a number of gifts they have made from GM’s funds to themselves, their families, some friends and several charities, and also for the court to agree what they have described as their deputyship expenses. ... I have no hesitation in revoking their appointment as deputies. GM’s finances are in disarray because of their conduct, and it is in her best interests that someone with experience of cases of unjust enrichment and restitution, such as a panel deputy, is appointed to manage her affairs in their place."