Lasting Powers of Attorney for property and financial affairs give attorneys wide powers to manage the donor’s assets. However, as Katharine Whittingham explains, the recent case of Chandler v Lombardi confirms that these powers do not necessarily extend to making gifts.
Chandler v Lombardi concerns a donor who had made a will in 1993 leaving her home equally between her four children. One daughter was later appointed as her attorney for both her Property and Financial Affairs and Health and Welfare.
The donor had met with solicitors on two occasions in 2016 when she expressed her intentions in relation to the property although the daughter was present both times.
On the first occasion, the donor told the solicitor that she wished to transfer half the property to the daughter. The solicitor had concerns about accepting these instructions and ultimately declined to act.
The following month, she met with a solicitor at a different firm with a view to updating her will. An attendance note from the meeting recorded that she wished for her daughter to receive the property on her death. However, no changes were in fact made to her will, despite her GP having confirmed that he considered she had the capacity to make a new will.
After registration of the power of attorney, the daughter consulted a solicitor in relation to the ownership of the property, stating that the donor had wished it to be transferred to her in return for her care and support. In June 2018 she signed a transfer of the property into the joint names of herself and her mother using the power of attorney. By this time, the donor would not have had the capacity to make the gift herself.
The donor’s son challenged the validity of the transfer. The donor died prior to the High Court hearing at which the judge ruled that the attorney had neither the power nor authority to make a gift of a share of the property. The transfer was declared void and the property reverted back to the donor’s estate.
The judge pointed out that attorneys have very limited powers to make gifts on behalf of donors under Lasting Powers of Attorney. The Mental Capacity Act 2005 permits attorneys to make gifts to relatives and other people connected to the donor only on customary occasions such as on birthdays and marriages and only where these are reasonable in value in relation to the size of the donor’s estate. The court did not consider that a transfer of half the property fulfilled these conditions.
If the donor has the desire and capacity to make a gift, there is nothing to prevent the donor from doing this personally even if an attorney is already managing their property and financial affairs.
Where the donor lacks capacity and an attorney considers it would be in their best interests to make a gift falling outside the parameters of the authority given under the Mental Capacity Act 2005, the attorney can make an application to the Court of Protection for an order giving authority for the gift to be made. The daughter claimed that she was not aware of the need to make a court application and had not been advised on this by the solicitor dealing with the transfer. This was not held to be a reasonable excuse.
When signing a Lasting Power of Attorney, an attorney is declaring that they understand their duty to act under the principles of the MCA 2005 and the Mental Capacity Act Code of Practice. It is therefore their responsibility to ensure that they understand what these involve.
If an attorney does make a gift on behalf of a donor on the basis of the powers set out in the Mental Capacity Act 2005, it is important to keep clear records of the date, recipient and value. This information may need to be provided to the Office of the Public Guardian in the event of a later challenge to the validity of a gift.