Capacity to Gift Assessments

What is a capacity to gift assessment?

A capacity to gift assessment is a way of ensuring that a person has the capability to make a financial gift.
What is included in the capacity to gift assessment?
Our capacity to gift assessments include a single visit to the client’s home, the assessment, a detailed written report, travel and reading time. The assessment will cover the gift and the client’s wider estate and often their family tree.

What case law do you use?
When assessing for capacity to gift we use the legal test of Re Beaney 1978. It is important to note that the threshold of understanding when assessing a person’s capacity to gift can change depending on the size of gift in relation to the person’s total estate. A proportionally large gift that would substantially affect the value of an estate would require a degree of understanding as high as that required when assessing testamentary capacity.

What information do you need from me?
As the proportion of the gift being given is paramount to setting the threshold of understanding in our assessment we will request information regarding the gift as well as wider details of the client’s estate and financial affairs. This information is vital to substantiate answers given during the assessment and assist the assessor in creating an appropriate question set. If the gift being proposed amounts to a large proportion of the estate, then we would also ask for details of the client’s family tree and any dependants.

Contact us and we will provide you with a copy of our bespoke referral form, which we will happily talk through with you.

What happens in the assessment?
The majority of our assessments take place at the client’s home, this is to help ensure they feel as comfortable as possible throughout the assessment. During the assessment the assessor will ask open questions relating to the gift, its size, the nature and consequence of gift giving and the wider estate.

We will always take note of and accommodate any special requests or communication needs. Our specialist mental capacity assessors always use language accessible to all and are well practiced at carrying out assessments using a variety of communication methods.

Why is a capacity to gift assessment necessary?
Gift giving can often be a contentious issue especially when a gift is large enough that it impacts on the wider estate and what beneficiaries expect to receive in a Will. A capacity to gift assessment, along with the detailed report that follows can be used if someone objects to the gift at the time or at a later date. It also provides a safe space for the client to express their wishes without any outside duress or influence.

What happens if I lack capacity to gift?
If the client already has a deputy for property and financial affairs the report can be used to let them know their wishes. If no deputy is in place it is possible to complete a CoP3 form which can be used to present to the Court of Protection. (This may incur a small additional charge).

To discuss arranging a capacity to gift with TSF please contact us.