Power of Attorney - Can I Sell the House?

27/08/2019
When you have lasting power of attorney 'can I sell the house?' is a question which might arise for various reasons. This might be because, for example, the person you have this power over needs to move into a care home and/or the proceeds from the sale of the house might be required to pay for this now or in the future.

The simple answer to this question is possibly, depending on the exact circumstance, however you need to be completely sure of your legal footing before you attempt to proceed.

This article therefore looks at:



Want to sell a house using your Lasting Power of Attorney?

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* Fixed Fee – No Sale No Fee – Specialists in Lasting Powers of Attorney (LPA)



    1

    What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal document that lets someone - for example your Mum or Dad - appoint one or more people (known as 'attorneys') to help them make decisions or to make decisions on their behalf.

This gives them more control over what happens to them if they have an accident or an illness and cannot make their own decisions (they 'lack mental capacity').

Any person who wants to give a lasting power of attorney to anyone else must be 18 or over and have mental capacity (the ability to make their own decisions) when they make their LPA.

You do not need to live in the UK or be a British citizen to give a lasting power of attorney one or more individuals.


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    2

    What are the two main types of Lasting Power of Attorney?

The particular types of lasting power of attorney which you can be given are highly important in conferring exactly what powers of decision you have been given by giver.

You can be given one type or both. The types are:

  • Health and welfare lasting power of attorney
    This gives you as an attorney the power to make decisions about things like:
    • the giver's daily routine, for example washing, dressing, eating
    • medical care
    • moving into a care home
    • life-sustaining treatment
    • It can only be used when the giver is unable to make their own decisions.
  • Property and financial affairs lasting power of attorney
    This confers on you as an attorney the power to make decisions about money and property for the giver, for example:
    • selling their home
    • managing a bank or building society account
    • paying bills
    • collecting benefits or a pension
So you would at least need to have a property and financial affairs LPA to positively answer the question "can I sell my mother's house with power of attorney?".

Additionally there is another variant of an LPA.

If your giver has an old style of Power of Attorney, called an Enduring Power of Attorney (EPA), created before 1 October 1987, then the rules are different.

If it is an EPA and your giver has sound mental capacity then you can act on their behalf with their permission, otherwise you will need to register the document before you can act.

An LPA for financial decisions has to be registered before you can use it whether or not the donor has capacity.

Registering an LPA or EPA involves sending the form to the Office of the Public Guardian - click for online infomation about registering an EPA or an LPA - along with a fee, which was £110 at press time.

Check the exact terms of your LPA if you're considering selling the donor's house

The donor can legally add extra instructions and/or guidance for their attorneys, such as whether you can make power of attorney gifts to family for example or how they prefer to invest. They could also disbar you as a power of attorney selling assets or selling their house by writing this into your document.



    3

    What if you share the power of attorney with one or more other people?

You might not be the only person who has been given a lasting power of attorney over the person involved.

If there are one or other people who also have a lasting power of attorney, you'll all be able to make decisions either:
  • Jointly; or
  • Jointly and Severally
The first requires that you all have to consult with each other before making a decision but the second means that you'll each be able to make decisions independently i.e. without consulting the others.

You should already know whether there are others who've been granted lasting power of attorney over the giver and whether you have the ability to act independently. If there is any doubt, you should consult the Office of the Public Guardian (telephone 0300 456 0300).


    4

    Do you have a certified copy of your Lasting Power of Attorney? What should you do if you don't have it/can't find it?

power of attorney selling assets
You'll need to present this to your conveyancing solicitor should you want to sell a property with your lasting power of attorney and will not be allowed to proceed without it.

If for any reason you don't have a certified copy stating your lasting power of attorney, you should consult the person who conferred it on you in the first instance, assuming they are of sound mind, and obtain a new document if they have one.

If they can't help or are not of sound mind, you should contact the Office of the Public Guardian (telephone 0300 456 0300) for further directions.


    5

    Is the person you have a Lasting Power of attorney over still capable of making decisions?

If they are, then you cannot proceed without the donor's permission. So the answer to a question such as "Can I sell my mother's house with power of attorney?" is possibly, it entirely depends on whether she has enough control of her mental faculties to decide whether to do this herself or not - if she has, then you can't.

To reiterate, with a power of attorney property can only be sold if the subject is incapable of making a decision - but the sale must be in the subject's interests.


    6

    If all the previous conditions are satisfied, as power of attorney can I sell the house then? What do I do next?

In sum, if:
  • you have an LPA over someone; and
  • it includes property and financial affairs; and
  • you either have joint and several right of decision or you have the agreement of the other attorneys to proceed with the proposed sale; and
  • you hold a certified copy of your LPA; and
  • your donor either gives you permission - if of sound mind - or your donor is no longer of sound mind
you can proceed with the sale. You should decide how you intend to market the property (e.g. via an estate agent) and instruct a conveyancing solicitor.


    6

    Can power of attorney sell property to himself (UK)?

You would need to consult the Office of the Public Guardian (OPG) about this intention first.

You cannot purchase something from your donor at a below market rate without the OPG's authority and you certainly cannot use your position to benefit yourself or make a personal gain. If you use your power of attorney for property purchase for example, you must ensure it is entirely for the donor's interest.  If you make a personal gain, you leave yourself open to criminal prosecution, and risk a lengthy jail term and/or an unlimited fine.

Additionally, in most situations, the answer to the question "Can a power of attorney borrow money?" is no, however once again, you should consult the OPG about this.


Want to sell a house using your Lasting Power of Attorney?

Our experienced and sensitive property lawyers can help you carry out the sale as efficiently as possible.

* Fixed Fee – No Sale No Fee – Specialists in Lasting Powers of Attorney (LPA)



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