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Gift Giving by someone mentally incapable – Part 10


One key point with this set of blogs is that this is at all times about someone who lacks capacity to make gifts for themselves.


The Mental Capacity Act says that capacity to make each decision is specific to the time at which is needs to be made and to the complexity of the question.  Therefore a person may have capacity to make some simple decisions, but lack capacity to make complex ones.  All these blogs have been about someone who lacks capacity to make gifts and I haven’t differentiated about the size or complexity of the gift, they just have not had capacity, so someone else has made the decision.


But what about someone who does not lack capacity?  Firstly it doesn’t go with the title of the blog, but moving swiftly on from that point, if they have capacity, then the choice is theirs, no-one else can make that decision for them.  They can be persuaded and the persuasion may tip over into undue influence, which can be tricky to pick apart, but the decision is theirs.


The only restraint on gift giving is financial.  There are rules about means testing of benefits, so as long as the gifts don’t impact on the financial assessment of benefits, then there is no problem.  The individual may also have contractual obligations and the obvious ones are rent or mortgage, so as long as they can make those payments, then no problem.  Even if they can’t make the payments, they will find themselves subject to the debt collection protocols that are in place and may find themselves homeless or with bailiffs coming round, their choices led them to this place and the consequences are theirs, but it does not necessarily invalidate the gift, as long as their creditors are not prejudiced.


The individual can give everything they own to charity or their best friend or a total stranger, if they have capacity, then that’s fine, as long as they don’t then want to apply for means tested benefits or are defrauding their creditors.


Someone with capacity is allowed to make unwise decisions, we all do, some of them are little decisions and others are bigger, but they are still unwise.  How many of us have had one too many glasses of wine & had a headache the next day or one to many slices of cake & had to go up a dress size!!  We don’t live perfect lives and that’s fine, we are allowed.


When we make decisions for ourselves, as we appreciate the consequences, this often impacts on our decisions and we therefore make gifts appropriate to the size of our estate anyway, but what we do is our choice and we are free to make those choices.