LPAs When Selling Property

More and more people are recognising the importance of putting in place a Lasting Power of Attorney. Here we discuss the potential effects of only appointing one Attorney and how this can prevent the Attorneys from dealing with your property. 

What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney is a legal document which allows individuals to give people they trust the authority to manage their affairs if they lack capacity to make certain decisions in the future for themselves.  To set up a Lasting Power of Attorney you must be aged 18 or over and must be of sound mind. 

Types of LPAs

There are two types of Lasting Powers of Attorney, one that deals with your Property & Financial Affairs and one that deals with your Health & Welfare. Both of these documents are very similar, however there is a difference with regards to how they operate.  

In respect of the Health & Welfare Lasting Power of Attorney, this document can only be used by your chosen Attorney or Attorneys when you have lost your mental capacity.   Until that point, doctors, nurses and/or any healthcare professional would speak directly to you and any decision regarding your Health & Welfare is yours to make and yours only.  It is only when you have lost the ability to speak for yourself and/or you have lost your mental capacity (whether that be temporarily or permanently) that your chosen Attorney or Attorneys become your voice and can make decisions regarding your Health and Welfare for you. 

In respect of the Property & Financial affairs Lasting Power of Attorney,  this document can be used by your chosen Attorneys if you require assistance managing your finances now (as long as you can give your consent to any decisions made) and also if you become mentally incapacitated. This document can also be used if you require assistance managing, leasing or selling a property.

Jointly Owned Property

Although putting in place a Lasting Power of Attorney for Property and Financial Affairs is a good idea, careful consideration should be given as to who is appointed as an Attorney where the donor owns a jointly owned property.   

It is common that couples will appoint one another as their Attorney and in some cases as their sole Attorney. Where the donor and the Attorney own a property jointly, this can lead to the situation where the Attorney is unable to deal with the property in their capacity as the appointed Attorney and as joint owner. In such circumstances the Attorney may be required to appoint a further Attorney to join them in dealing with the property.

In addition to this, if both owners of a property lose mental capacity and they have appointed one another as sole Attorneys, this can delay the sale of the property as there is no party with capacity to sign the Land Registry documents. As such it is likely that in such circumstances a deputyship order may be required. Obtaining such an order can take months and additional costs will be incurred.  

Rather than only appoint one Attorney, it is therefore advisable for more than one Attorney (such as a spouse/partner and another person) with the power to act jointly and severally, meaning that they can make decisions together or independently.  This would allow two different people to sign the Land Registry documentation to deal or otherwise sell the property, thereby preventing delays in the sale.

If you are already preparing for the future, it would be sensible to think about appointing more than one Attorney to ensure any property transactions run as smoothly as possible for your chosen Attorneys.

If you would like to discuss Lasting Powers of Attorney, drawing up a Will or future estate planning, please get in touch with a member of our Private Client Department who would be happy to help.