Can an attorney make gifts?
Guidance from Estate Advisory Group
Written and legally reviewed by Ramani Gill TEP, Solicitor and private client practitioner·Last reviewed 13 August 2026
Only within tight limits. Gifts are the single most common reason attorneys get investigated.
What the law allows
Section 12 of the Mental Capacity Act 2005 gives an attorney a narrow, specific power to make gifts — it is not a general licence to be generous with the donor's money, however close the family or however comfortable the estate. An attorney may make gifts only on customary occasions — birthdays, weddings, Christmas, anniversaries — to people connected to the donor, or to charities the donor already gave to. The amount must be reasonable given the size of the estate and must not affect the donor's ability to pay for their own care.
Worked example. Marion is attorney for her uncle Bernard, whose estate is worth around £300,000. When her uncle's granddaughter gets married, Marion gives £150 towards the wedding — a customary occasion, a reasonable sum, and consistent with the modest gifts Bernard used to give himself. That is within her power. When another relative later asks Marion to help with a house deposit using £20,000 of Bernard's savings, she correctly refuses: it is not a customary occasion, the sum is large relative to the estate, and it would need a Court of Protection order even with the family's full support.
What is not a gift you can make
Inheritance tax planning is not an attorney's decision
Transferring the house, making large gifts to reduce a future tax bill, writing off a loan or paying family members for care all need an order from the Court of Protection first — even where the whole family agrees and even where it is obviously sensible.
How the size of a gift is judged
| Estate value | Example customary gift | Likely acceptable without a court order? |
|---|---|---|
| £50,000 | £25 birthday gift to a grandchild | Yes |
| £300,000 | £150 wedding gift | Yes, if care costs are covered |
| £300,000 | £20,000 towards a house deposit | No — needs a court order |
| £1,000,000 | £500 Christmas gifts to several relatives | Usually yes, but record the reasoning |
There is no fixed threshold in the Act itself — the test is always whether the gift is reasonable in the context of that particular donor's assets, their likely future care needs, and the occasions on which they themselves gave gifts before losing capacity.
Interest-free grey areas
- Paying yourself expenses is not a gift, but it must be genuine and evidenced.
- Continuing regular payments the donor already made can be reasonable; starting new ones usually is not.
- School fees for grandchildren are a gift, not maintenance, unless the donor was already paying them.
- Selling the donor's car to a relative below market value is a gift of the difference.
Applying to the Court of Protection for a larger gift
If there is a genuine reason for a larger gift — reducing a future inheritance tax bill, helping a grandchild onto the property ladder, or a wedding contribution beyond what section 12 allows — the route is an application to the Court of Protection for authority. This takes several months and involves a fee, so it is worth planning well ahead rather than making the gift first and asking permission afterwards. See attorney duties and responsibilities for the wider best interests test the court will apply.
Common questions
How much is reasonable?
There is no set figure. A £50 birthday gift from a £400,000 estate is plainly fine; £5,000 to one child is not, however affordable it looks.
What happens if I have already made larger gifts?
Take advice quickly. The Court can retrospectively approve gifts, but the OPG can also require repayment and removal.
Can I give a gift to myself?
Only if you are a person the donor would customarily have given to, such as their spouse or child, and only within the same limits as any other gift.
What about the annual £3,000 inheritance tax gift allowance?
That is a tax rule, not an authority to make the gift. An attorney still needs the gift to fall within section 12, or a court order, regardless of what HMRC would allow a donor with capacity to give away tax-free.
Read next
Where this fits
This page is part of Attorneys and certificate providers. The pages below take it further.
- Make an LPA online
The whole journey end to end: questions, documents, signing and registration.
- The LPA forms explained
LP1F, LP1H and LP3 — what each section asks and where people go wrong.
Review and sources
Reviewed by Ramani Gill TEP, Solicitor and private client practitioner. Last reviewed 13 August 2026. We recheck fees, forms and Office of the Public Guardian guidance whenever they change — see our editorial policy.
Official sources
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This is general information about how Lasting Powers of Attorney work in England and Wales. It is not legal advice about your situation. What we do and do not do.
Published by Estate Advisory Group