An Attorney is a person that is appointed under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney to make decisions on behalf of the Donor (the person who made the Power of Attorney).

If the Donor is unable to make those decisions for themselves. Under a LPA for Property and Finance or an Enduring Power of Attorney, these decisions also include managing the Donor’s financial affairs.

Usually, an Attorney will have authority to sell the Donor’s property on their behalf. But it is important to check the Power of Attorney for any limitations on the Attorney’s powers which might be contained in the document.

Enduring Powers of Attorney

Enduring Powers of Attorney could be made up to 2007 (though they can still be used). Until they were replaced by LPA's. Attorneys appointed by an Enduring Power of Attorney will have authority to sell the Donor’s property. Unless there are any specific restrictions on this power.

If the Donor does not have or is losing their mental capacity, then the Enduring Power of Attorney must be registered with the Office of the Public Guardian. This must be done before the Attorney can use the document to sell the property. The current timescales for registration of an Enduring Power of Attorney is 8 to 10 weeks.

The Attorney may also sell the property on the Donor’s behalf with the Donor’s consent. But only if the Donor still has the required mental capacity to make this decision.

Lasting Powers of Attorney for Property and Finance

Like Enduring Powers of Attorney, a Lasting Powers of Attorney for Property and Financial Affairs gives the Attorneys the power to sell the property on the Donor’s behalf unless there are any specific restrictions within the document.

However, Lasting Powers of Attorney must be registered before they can be used. Even if the Donor still has mental capacity.

There is a second type of Lasting Power of Attorney. One that allows Attorneys to make decisions in relation to the Donor’s health and welfare but this type of Lasting Power of Attorney cannot be used to sell a property.

Restrictions and Limitations

As stated above, the Donor could choose to include restrictions or limitations on the Attorney’s powers under the Power of Attorney. For example, it is possible to include an instruction in the document which excludes the power for an Attorney to sell the Donor’s property.

If an Attorney wishes to sell the property to a family member, then this would need to be approved by the Court before the property is sold.

What if the Donor loses capacity and there is no Power of Attorney in place?

Unfortunately, a Lasting Power of Attorney cannot be made once the Donor has lost capacity.

If there is no Power of Attorney in place and the property must be sold, for example to pay for care fees. Then an application must be made to the Court of Protection to appoint Deputies. A close friend or family member would usually make the application to the Court to be a Deputy.

A specific order must be applied for to include the authority to sell the property. An application to the Court of Protection is much more complex, costly and time consuming than making a Lasting Power of Attorney.

How Timms can help...

Making a Lasting Power of Attorney for Property and Finance allows you to choose the people that manage your finances for you if you no longer have the capacity to do so, including selling your property.

If you wish to make a Lasting Power of Attorney or if you have any queries regarding Lasting Powers of Attorney, please contact me on 01283 214 231 or via email at s.wildsmith@timms-law.com.