Lasting Powers of Attorney: Help is at hand
It can be a stressful time for families when advised that they need to sell their parents’ home due to ill health or because equity is required to fund care home fees.
When acting under a Lasting Power of Attorney (LPA) and it does not specifically prevent the selling of property, then you may already have the authority to go ahead and place the property on the open market for sale, deal with the necessary forms and distribute the net sale proceeds.
If there is a restriction in the LPA which prevents you from selling the property, you may need to make an application to the Court of Protection stating why it is in the best interests of the person you act for to sell the property. This must be done before the property is placed on the open market to prevent delays with any proposed sale.
Once the Court is satisfied that the property should be sold, they will make an Order providing the authority to sell the property. This is required by the solicitor dealing with the sale before they can take instructions.
Any appointed Attorney must ensure that they are acting in the best interests of the person who lacks capacity. It is essential the property is not sold at an undervalue.
Care should also be taken if property is jointly owned and only one of the owners lacks capacity. This can happen where a property is owned by a husband and wife and one party lacks capacity. If the spouse has been appointed, as their sole Attorney, then the Court of Protection needs to appoint another party, a trustee, to act on their behalf. This can be a lengthy and costly and cause delays to a sale.
If you are selling a property or you are appointed as an Attorney, contact Philip Walker on pw@kiddspoorlaw.co.uk or Neil Shearer on ns@kiddspoorlaw.co.uk. Alternatively, please call 0191 297 0011 with your query.
