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Gift Giving by someone mentally incapable – Part 9


Following on from the case of DP, it is probably worth looking at the duties of an attorney, as indicated in that case.


The Court said that the attorney must act in accordance with the Principles of the Mental Capacity Act 2005, which are:

a)     A person must be assumed to have capacity unless it is established that they do not have capacity.

b)     A person is not to be treated as unable to make a decision unless all practicable steps to help him make a decision have been taken without success.

c)     A person is not treated as unable to make a decision merely because it is an unwise decision.

d)     An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests.

e)     Before the act is done or decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedoms of action.


The Court also said that the duty that the attorney must understand is that they can only make decisions when the LPA has been registered.  The Court went on to say that the attorney must act in the best interests of the donor, which is defined as:

a)               Working out a person’s best interests cannot be based on their age, appearance, condition or behaviour.

b)               All relevant circumstances should be considered when working out someone’s best interests.

c)               Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decisions.

d)               If there is a chance that the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later if it is not urgent.

e)               Special considerations apply to life sustaining treatment.

f)                The person’s past and present wishes and feeling, beliefs and values should be taken into account

g)               The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy.


The next part that the Court drew attention to was that the attorney needs to understand that they can only make gifts to charities or on customary occasions and for reasonable amounts. (which is the s.12 authority).


Finally the Court pointed out in the case of DP that the attorney (and all attorneys, not just this one) had a duty to keep accounts and financial records and produce them to the Office of the Public Guardian and/or Court of Protection on request.


Whilst the attorney in this case had done some of these things, in that DP was in care, her fees were paid and she was receiving a regular personal allowance, lots of it was adhered to, so hence the LPA was revoked.