The do’s and don’ts of attorney gifting: updated advice from the Office of the Public Guardian

In response the Office of the Public Guardian (OPG) addressed these concerns in their updated Giving Gifts Guidance released on 25 February 2026.

A common justification used by attorneys who have made unauthorised transfers is the belief that the donor (the person who made the LPA) would have approved. However, the law is clear: an attorney’s primary duty is to act in the donor’s best interests, not their own.

The Mental Capacity Act 2005 sets out that attorneys only have limited statutory power to make gifts without seeking permission from the Court of Protection. For a gift to be valid, it must meet all three of these criteria:

• 1. Customary occasion: It must be for an event like a birthday, wedding, or religious holiday.
• 2. Connected recipient: It must be given to a person related or connected to the donor, or a charity they supported.
• 3. Reasonable value: The amount must be affordable and proportionate to the size of the donor’s estate and their future care needs. As a general rule, this sum is set at a low limit.

Taking an ‘early inheritance’ or interest-free loan is an unauthorised gift. The OPG is clear that if an attorney wishes to make a gift that falls outside the limited statutory exceptions (such as a large sum for inheritance tax planning), they must apply for prior approval from the Court of Protection.

Failure to do so can lead to several consequences: investigation by the OPG; revocation of the LPA; litigation being instigated to require the repayment of funds; and/or police investigation for fraud or theft.

We can advise you on Lasting Powers of Attorney and any Court of Protection matters. Find out more about our private client legal services here.