This article deals with those who act in a representative capacity for a house owner, as their attorney or deputy.
Selling under a Power of Attorney
It is important to be aware of the extent of your powers, which will be defined by the type of Power of Attorney you have, and any specific directions comprised within it.
You may, for example, be an attorney under a registered Lasting Power of Attorney (LPA). If so, you will have authority to sell the donor’s property provided there is no clause in the LPA document preventing you from doing this and also provided you are acting within the general scope of your authority as attorney.
For example, you are not empowered to sell the donor’s property just because you, as attorney, think it is a good idea. It may be obvious to you that a donor may not be able to live in their property any longer, but you must consider the donor’s instructions and/or wishes before embarking on a sale. One of the five core principles of the Mental Capacity Act 2005 is that anything done for or on behalf of people who lack capacity should be the least restrictive of their basic rights and freedoms. This means that when anything is done to or for a person who lacks capacity, the option which interferes the least with their rights and freedom of action must be chosen.
If you are acting under an unregistered Enduring Power of Attorney (EPA) you may sell the donor’s property if they instruct you to do so. If, however, you are acting under a registered EPA (rather than a registered LPA) then you will need first to obtain a court order from the Court or Protection authorising you to sell the property.
Alternatively, you may be acting under an Ordinary Power of Attorney which permits you, generally or specifically, to sell a property. It is important to remember, however, that an Ordinary Power of Attorney is only valid whilst the donor retains mental capacity.
When selling the property, you will need to provide identification evidence for both the donor and for yourself. You will then need to ensure that the net proceeds of sale of the property are placed into an account in the donor’s name (not your own name).
Selling as a Court Appointed Deputy
When selling a property as a Court Appointment Deputy, it is particularly important to be aware of the scope of your authority, which will be clearly set out in your Deputyship Order. Often, a Deputy will be required to liaise with the Court before embarking upon a sale. Also, any fees payable to a selling agent or a solicitor, are restricted by the Court. Again, identification evidence, as specified above, will be required by your professional advisers.
The residential conveyancing team and the private client team at Barrett & Co will be glad to assist you with the practicalities of selling as attorney/deputy and we would advise that you consult us prior to marketing the property in order to ensure that you have the appropriate authority to sell prior to committing you to any sale.
Get in Touch
If you would like to discuss selling as an attorney/deputy then please contact Alan Warnes, one of our specialist advisers and Head of our Residential Conveyancing Team on [email protected] or 0118 958 9711 and he would be glad to assist you.