Yes, but only within narrow limits. An attorney under a property and financial affairs LPA can make small gifts on customary occasions. They must go to people connected with you, or to charities you supported, and the amount must be reasonable given the size of your estate. Anything beyond that needs permission from the Court of Protection first.
The limits come from section 12 of the Mental Capacity Act 2005. They exist because an LPA hands real power over your money to someone else, and giving your money away is the decision where that power is most open to abuse.
Why are there limits on gifts?
An LPA lets the people you trust manage your finances and protect your interests when you may be vulnerable. Your needs, now and in future, come first. What other people want or need is not a reason to spend your money.
Your attorneys do have to consider your wishes and feelings as part of working out your best interests, and making gifts to family and friends is likely to be part of that. But taking your wishes into account is not the same as doing whatever you would have done. If you had capacity you might choose to benefit someone else even at your own expense. Your attorneys cannot. They can only make small gifts inside their authority, and only where doing so is in your best interests.
What gifts can an attorney make?
There is no total ban. Section 12 allows gifts on three conditions, and all three have to be met.
- A customary occasion. The Act means the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or "any other occasion on which presents are customarily given within families or among friends or associates". That covers birthdays, weddings, anniversaries, a new baby, and religious or cultural festivals such as Christmas, Eid, Diwali, Hanukkah or Chinese New Year.
- The right recipient. Someone related to or connected with you, which expressly includes the attorney themselves, or a charity you gave to or might have been expected to give to.
- A reasonable amount. The value of each gift must be "not unreasonable having regard to all the circumstances and, in particular, the size of the donor's estate". A modest gift from someone with £20,000 in savings looks very different from the same gift from someone with £2 million.
Gifts an attorney can usually make
- £50 to each grandchild at Christmas, including the attorney's own children
- £100 to the attorney on their birthday
- £200 to a great niece for her wedding
- Carrying on an existing £10 monthly subscription to a charity you supported
Gifts an attorney cannot make without the court's permission
- Giving away a property, or selling one at an undervalue
- A large gift to a child to help them buy a home
- Passing on part of an inheritance early to reduce inheritance tax
- An interest-free loan to the attorney going through a divorce
- Large gifts to family to reduce what is available for care fees
Deliberately giving money away to avoid care fees can be treated as deprivation of assets by the local authority, quite apart from whether the attorney had authority to make the gift. It is rarely the shortcut it looks like.
Is there a limit on the value of a gift an attorney can give?
There is no fixed figure. The Mental Capacity Act does not define a reasonable or an unreasonable gift, and the Office of the Public Guardian says it cannot give precise figures. It is a judgement the attorney has to make on the circumstances at the time. An attorney who is unsure should be cautious and apply to the Court of Protection.
Before making a gift, an attorney should think about the value of your assets, your income now and in future, and your health and likely care needs. They should also consider what happens if your circumstances change and you need full-time care. It is worth writing that reasoning down. Keeping a record matters: the court can order an attorney to produce accounts, and an attorney who kept nothing has no way of showing the gift was proper. Our guide on the five duties of an attorney covers record keeping in more detail.
What if my attorneys want to make a larger gift?
They have to apply to the Court of Protection first. Under section 23(4) the court "may authorise the making of gifts which are not within section 12(2)". That is a proper application, with the facts put before a judge, so it takes time and costs money.
Going ahead without permission is serious, even where the attorney genuinely believed it was what you would have wanted. The Office of the Public Guardian can investigate, freeze accounts, and apply to the court to remove the attorney. The court can revoke the LPA altogether. It did exactly that in Re Buckley (2013), where an attorney spent the donor's money on an unsuitable investment and on herself. Senior Judge Lush held that an application must be made to the court for gifts that go beyond section 12, and that not knowing the rules is no defence to a breach of duty.
An attorney can also be personally liable to pay the money back, and the OPG can refer the matter to the police. Criminal charges can include fraud by abuse of position.
Can I give my attorneys authority to make larger gifts?
No. Section 12 is a ceiling set by Parliament, not a default you can raise. The LPA form lets you add conditions and restrictions, and those can narrow what your attorneys may do, but they cannot widen it.
What you can do is record a preference in the LPA. A preference is not legally binding, but it is a record of your wishes for your attorneys to keep in mind. If they later decided a larger gift was right, they would still need to apply to the Court of Protection. The preference would then be good evidence of your wishes and feelings when the judge weighed it up. Writing down your reasoning while you have capacity is worth doing for that reason: our sister company Capacity Vault exists to record that kind of evidence alongside your documents.
Can my attorneys keep supporting my spouse if I lose capacity?
Often yes, and this is treated differently from a gift. The Office of the Public Guardian's guidance says plainly that "a maintenance payment is not considered to be a gift under the Mental Capacity Act 2005". Where there is an obligation to maintain someone, through the general law or because you provided for them in the past, those payments are not caught by the section 12 gift limits.
The clearest cases are a wife, husband or civil partner, and a dependent child. Beyond that it gets less certain, and the OPG's advice is to apply to the Court of Protection if it is not clear that an obligation to maintain exists.
The court has been willing to allow support to continue. In Re G (TJ) (2010) it considered maintenance payments to an adult daughter out of her mother's funds, and was prepared to direct them where that was in the mother's best interests. Even then the money had to come from funds "surplus to the funds which the Deputy for Mrs G would properly wish to have available to spend on Mrs G herself for the remainder of her days". Your own needs come first, and that principle runs through everything an attorney does.
As with any decision, an attorney should only carry on maintenance payments where you made them in the past and it is reasonable to continue. If there is real doubt, the safe course is to ask the court.
What should you do about it?
If you are making an LPA, think about whether you want to say anything about gifts, and read our guide on choosing attorneys before you decide who to appoint. It is also worth understanding when your attorneys can act, since that choice affects how soon any of this becomes live.
If you have been appointed and are unsure whether a gift is within your authority, read the Office of the Public Guardian's guidance on giving gifts. If there is any doubt, apply to the court rather than hoping for the best. The cost of an application is small next to the cost of getting it wrong.
New to all this? Start with what a Lasting Power of Attorney is, then how to make one and what it costs. We make solicitor-made LPAs, online or with a full consultation.
This article is for general information and is not legal advice. If you are an attorney and are not sure whether a gift is within your authority, please get in touch for advice on your own situation.
Sources
- Mental Capacity Act 2005, section 12 (scope of lasting powers of attorney: gifts) on legislation.gov.uk
- Mental Capacity Act 2005, section 23 (powers of court in relation to operation of LPAs) on legislation.gov.uk
- Mental Capacity Act 2005, section 22 (powers of court in relation to validity of LPAs) on legislation.gov.uk
- Mental Capacity Act 2005, section 4 (best interests) on legislation.gov.uk
- Giving gifts: guidance for attorneys and deputies, Office of the Public Guardian, updated 25 February 2026, on GOV.UK
- Re Buckley: The Public Guardian v C [2013] EWCOP 2965 on Find Case Law, The National Archives
- Re G (TJ) [2010] EWCOP 3005, also cited as [2010] EWHC 3005 (COP), on BAILII
Common questions
Can my attorney give themselves a gift?
Yes, within the same limits that apply to anyone else. Section 12 of the Mental Capacity Act 2005 expressly allows gifts to people related to or connected with you "(including himself)", so an attorney can receive a birthday or Christmas gift on the same footing as another family member. It still has to be a customary occasion and a reasonable amount. Anything larger needs the Court of Protection's permission, and a gift an attorney makes to themselves will be looked at closely.
How much can an attorney give away?
There is no fixed figure. The Act says the value of each gift must be "not unreasonable" given all the circumstances and, in particular, the size of your estate. The Office of the Public Guardian says it cannot give precise figures. What is reasonable from a £2 million estate may be plainly unreasonable from £20,000, so the attorney has to judge it on the facts and keep a record of their reasoning.
Can an attorney make gifts to reduce inheritance tax?
Not on their own authority. Tax planning gifts go well beyond the small customary gifts section 12 permits, however sensible they look. The attorney would have to apply to the Court of Protection under section 23(4) for permission first. The court can authorise gifts outside section 12, but it decides on your best interests, not on what would suit your family or your estate's tax position.
What happens if an attorney gives away more than they are allowed to?
The Office of the Public Guardian can investigate, freeze accounts and apply to the Court of Protection to remove the attorney, and the court can revoke the LPA. The attorney can be ordered to repay the money personally. The OPG can also refer the matter to the police, and criminal charges can include fraud by abuse of position. In Re Buckley the court revoked an LPA and held that not knowing the rules was no defence.
Can my attorneys keep paying my spouse's living costs?
Usually yes. The Office of the Public Guardian's guidance says a maintenance payment is not treated as a gift under the Act, so the section 12 limits do not apply to it. That is clearest for a wife, husband or civil partner and for a dependent child. For anyone else the position is less certain, and the OPG advises applying to the Court of Protection where it is not clear an obligation to maintain exists. Your own needs still come first.
Kate Scott
Solicitor · Private Client Specialist
Kate is a solicitor (SRA number 298202) who qualified in 2003. She specialises in wills, trusts, Lasting Powers of Attorney and lifetime tax planning, with particular experience in complex wills involving blended families, unmarried couples, vulnerable beneficiaries and inheritance tax. She was an accredited member of the Association of Lifetime Lawyers (formerly Solicitors for the Elderly) for over fifteen years, and joined Make a Will in 2026.
Verify Kate’s credentials: Law Society · SRA register
Further Reading
- Making a Will - GOV.UK Official UK Government guidance on making a will
- Wills - Citizens Advice Free advice on wills and inheritance
- Making a Will - The Law Society Legal guidance from the professional body for solicitors