Capacity To Make A Gift Assessments
A gifting capacity assessment determines whether a person has the mental capacity to make a gift of money, property, or assets during their lifetime. At OFH Care, we provide professional, court-compliant reports under the Mental Capacity Act 2005, and apply the Re Beaney test to ensure gifting decisions are valid, free from undue influence, and legally defensible in Court of Protection applications. This safeguards solicitors, families, and individuals against disputes, undue influence, and invalid gifts.
What is Capacity to Make a Gift?
Capacity to make a gift refers to a person’s legal and mental ability to give money, property, assets, or other valuable items to someone else while alive. This is sometimes called a lifetime gift assessment. The law requires that a person must understand:
- The nature and value of the gift they are giving
- The impact on their remaining estate and financial position
- The relationship to the recipient, and whether others may expect to benefit
- The potential consequences, including inheritance tax implications
- Re Beaney test – used specifically for assessing the capacity to make gifts, particularly when the gift is substantial compared to the donor’s estate.
- Banks v Goodfellow test – traditionally used in testamentary capacity assessments (capacity to make a Will), but often referenced in gifting decisions for consistency.
Capacity to make gift assessments ensure gifts are valid, legally binding, and free from undue influence. Without capacity, a gift can be challenged, declared invalid, or require approval from the Court of Protection.
Why Might Someone Need a Gifting Capacity Assessment?
A mental capacity assessment for gifting is recommended where there are concerns about a person’s ability to understand or weigh up a decision. Common scenarios include:
- Cognitive impairment such as dementia, Alzheimer’s disease, or brain injury
- Mental health conditions affecting decision-making
- Large or unusual gifts, especially those involving property or inheritance tax planning
- Family disputes or risks of coercion and undue influence
- Court of Protection gifting applications, where a COP3 gifting assessment may be required
- Solicitor-instructed assessments, providing legal protection during estate planning or deeds of gift
By obtaining a professional capacity to gift report, solicitors and families are able to protect both the donor and the beneficiaries.
Need to confirm someone’s capacity to make a gift? Our experts can help.
What Does a Capacity to Make a Gift Assessment Involve?
At OFH Care, every gifting capacity assessment is carried out in line with the Mental Capacity Act 2005 principles. The assessment process involves:
Initial background gathering – We obtain information from the solicitor, referrer, or family about the proposed gift and its context.
Face-to-face assessment – Our assessor meets the individual to assess their understanding of:
- The nature and value of the gift
- How giving a gift affects their financial position
- The consequences for themselves and their estate
- Who benefits, and whether this is consistent with expectations
Consideration of undue influence – We assess whether the decision is truly voluntary.
Structured decision-specific questions – Using clear, accessible language tailored to the individual’s needs.
Following this process, we prepare a comprehensive, court-ready capacity to gift assessment report.
What Does the Capacity to Make a Gift Report Include?
Our capacity to make a gift reports provide:
- A clear summary of the assessment context and reason for referral
- Analysis of the individual’s understanding of the gift decision
- Consideration of relevant legal tests (Re Beaney and Banks v Goodfellow, where appropriate)
- A professional conclusion on whether the person has the legal capacity to gift
Who Can Request a Gifting Capacity Assessment?
- Solicitors drafting a deed of gift, managing estate planning, or supporting inheritance tax arrangements
- Families and carers who want reassurance that gifts are valid and protected
- Deputies and attorneys acting under the Court of Protection who must safeguard vulnerable people’s finances
- Individuals themselves who want clarity and legal protection when making significant gifts
Case Study:
Safeguarding a Lifetime Gift
Client:
Mrs P, age 82, with early-stage dementia
Context:
Mrs P wished to gift a large sum of money to her granddaughter for a house deposit. Her solicitor requested a capacity to gift assessment to ensure the decision would remain valid.
What We Did:
OFH Care carried out a face-to-face capacity assessment to determine Mrs P’s ability to make a gift, exploring her understanding of the gift’s value, its impact on her remaining estate, and the potential consequences for her care needs.
Outcome:
Frequently Asked Questions About
Capacity to Gift Assessments
Do I always need a mental capacity assessment before making a valuable gift?
Not every gift requires a formal assessment. For small, everyday gifts where the donor clearly has capacity, no report is usually needed. However, for significant lifetime gifts involving money, property, or inheritance tax planning, a gifting capacity assessment provides legal protection, reassurance for families, and reduces the risk of disputes or claims of undue influence later.
What kinds of gifts may require a formal mental capacity assessment?
Our assessors can assess capacity for a wide range of gifts, including cash gifts, property transfers, deeds of gift, and the distribution of assets. Whether someone is transferring large sums of money, gifting property, or supporting a loved one’s financial future, a mental capacity assessment for gifting ensures the decision is valid, safe, and legally robust.
How long does a gifting capacity assessment take?
Most gifting capacity assessments take between one and two hours. The exact time depends on the complexity of the decision, the individual’s communication needs, and the nature of the gift in question. OFH Care’s mental capacity assessors take the time to build rapport, explore understanding in line with the Re Beaney test, and provide a clear, court-compliant report for solicitors and families.
What if someone lacks the capacity to make a gift?
If a person is assessed as lacking the legal capacity to make a gift, the gift cannot be made. In such cases, solicitors or families may need to apply to the Court of Protection for approval by submitting a COP3 form along with other relevant documents. This ensures the person’s finances and welfare remain protected. Our reports can also support deputies or attorneys who must safeguard against the receipt of inappropriate or invalid gifts.
Can OFH Care’s reports be used in Court?
Yes. All capacity to make a gift reports produced by OFH Care are fully court-compliant and meet the requirements of the Mental Capacity Act 2005. They are routinely accepted in Court of Protection gifting applications, solicitor-led estate planning, and cases involving potential disputes. Our reports provide clarity, evidence, and reassurance that gifting decisions are fair, valid, and legally defensible.
Can someone with dementia still make a valid gift?
Yes. A diagnosis of dementia does not automatically mean a person lacks the capacity to make a gift. Under the Mental Capacity Act 2005, capacity is both decision-specific and time-specific. This means that if someone with dementia can demonstrate understanding of the nature and value of the gift, and the consequences of the act of giving the gift, they may still pass a gifting capacity assessment.
What is the difference between the capacity to make a gift and testamentary capacity?
The two assessments are closely related but apply to different legal decisions. Capacity to make a gift (assessed using the Re Beaney test) concerns whether someone understands the nature, value, and consequences of giving away money, property, or assets during their lifetime. Testamentary capacity (assessed using the Banks v Goodfellow test) applies to Wills and focuses on a person’s ability to decide how their estate will be distributed after death. Both assessments adhere to the principles outlined in the Mental Capacity Act 2005. However, solicitors often request gift capacity reports when lifetime gifts could impact inheritance tax planning, asset protection, or future probate.
What legal tests apply when assessing gifting capacity?
Why Choose OFH Care for Capacity to Make a Gift Assessments?
Solicitors, deputies, and families across England and Wales trust OFH Care because we provide:
- Legally robust reports suitable for Court of Protection and solicitor use
- Fixed-fee pricing with transparent costs & fast turnaround
- Nationwide coverage with face-to-face appointments and virtual assessments available where appropriate
- Person-centred, ethical approach that respects dignity and independence
- Expert assessors with experience in dementia, brain injury, and cognitive impairment
At OFH Care, we combine specialist knowledge with compassion, helping individuals and professionals make safe, fair, and legally valid gifting decisions.