Gifting Rules for Attorneys: MCA Section 12 Explained
What gifts attorneys can and cannot make under Section 12, when court approval is needed, and how to document gifting decisions safely.
Why gifting causes legal risk
Most attorney misuse investigations involve money movement that was explained as "family support" or "tax planning" but lacked legal authority.
Section 12 in plain English
Attorneys can only make limited gifts in defined circumstances. Broad gifting is not a default power.
What is usually permitted
Small, reasonable gifts on customary occasions may be allowed where consistent with estate size and donor circumstances.
What usually needs court approval
- Large transfers to family
- Strategic inheritance tax gifting
- Gifts that materially reduce estate value
If in doubt, get advice before acting.
Best interests and proportionality
Even where gifting is legally possible, attorneys should consider:
- Current and future care funding needs
- Donor's historical gifting pattern
- Fairness and conflict risk
Documentation standard
For every gift decision, record:
- Occasion and reason
- Amount and recipient
- Why it is legally and financially reasonable
- Who was consulted
Red flags
- Regular unexplained transfers
- Gifts to attorney without clear rationale
- No receipts or rationale notes
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