Managing the affairs of someone else – Financial Affairs
Following on from my last blog about managing the health and welfare decisions of another person, how do you manage the financial affairs of another person?
The starting principles are the same as with the health and welfare, what did the person themselves do before they became ill? This should form a very important part of your decision, but you are not there to make their decisions, you make your own. The question is what is in their best interests and all aspects of this issue should be taken into account when making this decision.
With regards to finances though, there are some rules around what can and cannot be done, as access to money puts the person at risk of fraud and theft.
Firstly, the attorney and donor should not have mixed finances, the funds should be clearly separated out into different accounts, so what money belongs to whom is clear.
If there is a large sum to invest, such as the proceeds of the sale of a property, then the investment strategy should be undertaken with the advice of a financial advisor, who will carefully look at the situation and work out what the investment risk profile of this person should be. Depending on the circumstances, including the health issues and life expectancy of the donor and the amount of money involved, there could be lots of different scenarios to consider in financial terms.
The donor should not make investments into the business of the attorney, to provide financial support for them. This is considered gifting, rather than investing and there should be a great deal of care taken over gifting. This is also an issue of mixed finances, which again, should not happen.
Gifting is a big issue and I get asked lots of questions about this. Can the attorney make gifts? There is no simple answer, the phrase that is used regarding gifting is that it should be “on occasion” and “reasonable in all the circumstances and in particular to the size of the estate”.
What does on occasion mean? It is birthdays, Christmas, graduation, house warming etc, gifting should be done at these specific times for specific religious, family or cultural reasons, not just because someone is short of money or has seen something in the shops that they fancy!
What about “reasonable in all the circumstances”? The gift must be one that the donor either did or would have made had they been well. There is no reason that they would gift anything to an estranged family member, if they hadn’t done in the years preceding their illness. A plant or toaster is a suitable house warming present, the gift itself must be suitable for the occasion.
The other key part of the phrase about the gift being reasonable, is that it must be reasonable in particular to the size of the estate. The Court of Protection has said that if the estate is over the value of the nil rate band, which is currently £325,000, then if there is nothing unusual about the estate, then the attorney can give away the £3,000 per year that is exempt for inheritance tax. Where the size of the estate is smaller, part of the consideration will be what gifting that person made when they were well, such as £10 for the birthdays and Christmas of their two children will cost £40 per year, which would be reasonable for a modest sized estate. When in doubt, the emphasis is to be less generous rather than more or to not make the gift at all. Any gifts larger than the £3,000 discussed above or loans to the attorney would need specific Court approval. The Court’s general view is that money is for the donor and not for anyone else, so there needs to be a good reason to gift it, but thinking fondly of someone is considered a good reason.
Managing the affairs of another person can be challenging, often because it comes at a time when the family is in distress anyway, because their loved one is unwell. I am happy to provide support to those attorneys who need some advice.