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A pleasant aspect of human nature is the impulse to give. We all like to help out friends, loved ones and anyone less fortunate than ourselves in times of need, and society is all the richer for it.
But what if the person doing the giving is a vulnerable, perhaps elderly, person who relies on others for help in coping with day-to-day living? Is it right for those helpers to accept gifts from them?
Obviously, there is nothing wrong with accepting the odd token of gratitude or affection, but what if the gift is of a large sum of money, or smaller yet regular amounts, or a valuable asset like a car or even a house? This raises not only moral but legal issues for the recipient.
There are a number of legal challenges that may be made to such unusually generous gifts, and claims involving them are on the increase, particularly where the recipient has been treated more favourably than other siblings, or where they are not a family member at all. A convenient route which is often taken is to challenge on the basis that the recipient in some way controlled the giver’s mind and in doing so abused the trust and confidence that was placed in them.
The mistake some people make is to assume that it is for the person challenging the gift to prove that the recipient coerced the giver into it, which is often difficult if not impossible to do as the coercion usually happens behind closed doors.
The true position is that, once the Court is satisfied that the recipient was indeed in a position of trust, it is up to him to satisfy the Court that he did not abuse it. This is often not an easy thing to do. It is for this reason that unusually generous gifts made in these circumstances are often overturned by the Court.
In order to avoid disputes the recipient should ideally insist that the giver takes legal advice before proceeding with the gift, and informs anyone potentially affected by the decision before it is made. Where the giver lacks capacity to manage his own affairs, an application to the Court of Protection to sanction the gift is required.
Should you have concerns about gifts made by a vulnerable person, or any aspect of their financial affairs, seeking early legal advice is essential.
Contact me for further information or advice relating to this article.