OPG’s updated guidance on gifts by attorneys

The Office of the Public Guardian (OPG) published updated guidance on 25 February 2026 addressing the legal framework under the Mental Capacity Act 2005 governing when deputies and attorneys may give gifts on behalf of a person lacking capacity, and setting out the action it may take where such authority is exceeded.

It explains:

• the legal framework to gifting; and

• the OPG’s approach where deputies or attorneys exceed their authority.

You can access the full guidance here.

When are gifts permitted?

The guidance makes clear that attorneys and deputies have very limited powers to make gifts.

Gifts are generally permitted only on customary occasions (such as birthdays, Christmas, weddings etc) to people connected to the person or to charities they supported, and must be reasonable and affordable and in the person’s best interests in all the circumstances.

What is “reasonable” will depend on:

• the person’s financial circumstances and current and future needs, including anticipated future care costs;

• life expectancy; and

• previous gifting patterns.

If an attorney or deputy wants to make a gift that falls outside the restrictions in the law, they must apply to the Court of Protection for approval.

When is Court of Protection approval required?

The OPG guidance is clear that many common scenarios fall outside an attorney’s or deputy’s authority and will require an application to the Court of Protection. Examples include:

• gifts of significant value;

• gifts to the attorney/deputy themselves and any other transaction where there is a conflict between the interests of the person and the attorney’s/deputy’s own interests;

• investments in the person’s own business;

• making a loan, with or without interest, from the person’s money;

• inheritance tax planning (including use of annual exemptions);

• creating trusts;

• forgiving debts;

• property transactions at undervalue; and

• providing ongoing financial support to others.

Risks of getting it wrong

The OPG carries out a supervisory role and can investigate attorneys and deputies and require an explanation of any gifts or financial transactions.

The consequences of unauthorised gifting can be serious. The OPG may:

• require repayment of funds;

• apply for the attorney’s/deputy’s removal;

• refer the matter to the Court of Protection; and/or

• refer the matter to the police.

Conclusion

The updated guidance reinforces a clear message that attorneys and deputies do not have a general power to make gifts and any gifting must fall within narrow legal limits.

Where there is any doubt, advice should be sought and, where appropriate, an application made to the Court of Protection.

How we can help

Our team of specialist lawyers has extensive experience advising on the management of property and financial affairs for vulnerable individuals.

We can help whether you are concerned that someone you know is being financially abused, you are concerned that you yourself are subject to financial abuse, or you are the person being accused.

We routinely assist with:

• advising attorneys and deputies on their duties and powers;

• reports to the Office of Public Guardian and Social Services;

• applications to the Court of Protection, including applications for a declaration as to the vulnerable person’s capacity, for the approval of gifts and for the removal of attorneys and deputies;

• claims for the recovery of funds and/or the setting aside of transfers of property (before and after death); and

• the resolution of financial abuse claims by alternative dispute resolution, such as mediation, early neutral evaluation and joint settlement meetings.

Get in touch

For more information or advice on challenging lifetime gifts, please contact us on freephone 0800 0931 336, by email at CourtofProtection@ashfords.co.uk or via our contact form.