Can an attorney sell a property through an LPA?

If you have been appointed as an attorney under a Lasting Power of Attorney (LPA), the time may come when you need to sell the property belonging to the person who appointed you. This could be to buy a more suitable home for them or to enable them to move into a care home. Today at S Bish Estate Planning we look into this in more detail.

An LPA is often used when someone loses the ability to manage their own affairs. A property and financial affairs LPA can also be used by an attorney while the individual is still able to deal with matters but it is more convenient for the attorney to handle transactions for them.

Putting a loved one’s house on the market is never easy. If you have been appointed to deal with their property and financial affairs, you will have the responsibility of obtaining the best price, dealing with the conveyancing transaction and clearing the property ready for completion.

Do you have the authority to sell a property if you are someone’s LPA attorney?

As an attorney, you must ensure that you have the authority to sell. The LPA must be a property and financial affairs LPA, not a health and welfare LPA.

The document may impose limitations on what you are able to do. For example, if the person who signed the LPA, known as the donor, appointed more than one attorney, the LPA may require both of you to authorise a property sale together.

In addition, the LPA could require other steps to be taken before a sale, such as obtaining the consent of the Court of Protection (CoP).

It is essential to check that you have the necessary authority before you start work to avoid delays and complications later on. If you are not certain whether the LPA provides this, you can check the details with an LPA solicitor. Where necessary, an application can be made to the Court of Protection.

The difference between and LPA and an EPA

Before the creation of LPAs in 2007, it was possible to make an Enduring Power of Attorney (EPA), which gave an attorney similar authority. While you can no longer make an EPA, they are still valid and if you are an attorney under an EPA, you will still have the authority it grants you.

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. It can take three months or more for a registration to be completed, so it is a good idea to register an LPA as soon as it has been made.

An EPA can be used without registration if the donor still has the mental capacity to manage their own affairs. If they have lost mental capacity, then the EPA must be registered before it can be used.

Dealing with the sale of a property as an attorney

Once you have confirmed that you have the necessary authority, you will be responsible for acting in the best interests of the donor. You need to look after their assets, including insuring their home in the correct way. This could mean advising the insurance company that the property is unoccupied.

You must obtain the best price for the property. To show that you have done this, you can obtain three valuations from different agents. An average of the three prices may be a realistic asking price. You can also request that the estate agent you use provide a written recommendation if they believe that an offer is a good price for the property.

You will be responsible for all of the additional issues relating to selling a house, including notifying utility companies, clearing bills, redirecting mail and clearing the property.

Responsibilities under the Mental Capacity Act 2005

As an attorney, you must act in accordance with the requirements of the Mental Capacity Act 2005 at all times. The five main principles are as follows:

· You must assume that the donor is able to make their own decisions until you have evidence that they do not

· You should assist them to make decisions themselves as far as possible

· The donor has the right to make an unwise decision

· Any decision you make on their behalf must be in their best interests

· Any decision must be the one that least limits their rights and freedoms