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If you have been appointed as an attorney under a Lasting Power of Attorney (LPA) or a deputy under a deputyship order, the time may come when you need to sell a property on behalf of the person whose affairs you are managing.

It is essential to ensure you have the necessary legal authority at the outset, as it could delay a sale if you reach exchange of contracts and you do not have this.

The buyer’s solicitor will ask for evidence that you have permission to sell the property and they will not be able to go ahead until it is provided.

Lasting Powers of Attorney and Enduring Powers of Attorney

A Lasting Power of Attorney is a legal document signed by someone granting authority to one or more individuals to manage the person’s affairs, should they ever be unable to do this themselves. An Enduring Power of Attorney (EPA) is a similar document, but an older version. It is no longer possible to make an EPA, but if someone made one before October 2007, this can still be used.

The document will outline the authority that the signatory is granting to their attorney or attorneys, along with any restrictions they want to impose. For example, they may be happy for one attorney to act alone to deal with day-to-day matters, such as receiving benefits, paying bills and arranging for home maintenance.

But they could require all attorneys to act together to deal with major decisions, such as selling a property.

Where there is no other restriction on the sale of property, the two individuals can deal with the matter. This is also the case for attorneys acting under an EPA.  It is worth noting that an EPA must be registered with the Office of the Pubic Guardian (OPG) if the donor loses capacity. By comparison to an LPA which has to be registered before it can be used.

Where only one attorney has been appointed, then a second trustee needs to be appointed to receive the sale proceeds along with the attorney already appointed, as this is a general legal requirement.

If the donor still has mental capacity then the donor themselves should be involved in the sale and sign all pertinent documentation.

Deputyship orders

Deputyship orders are made by the Court of Protection when someone has lost mental capacity and they have not put an LPA or EPA in place.

The order appoints someone to act as the patient’s deputy, usually a family member, and sets out the authority they have been granted.

A deputyship order will often state that a sale of property can only take place if a further order of the court is made. This means that the deputy must apply to the court for an order in plenty of time, so that a copy can be given to the buyer’s solicitor before the exchange of contracts.  It is always worth including a request to sell property within the original application to save time at a later date.

When applying for the order, you will need to give the court the following information:

• Why the sale is being considered
• The reasons that the sale is in the patient’s best interests
• The value of the property, usually a professional valuation or valuations provided by more than one local estate agent
• What will happen to the sale proceeds, for example, payment of care home fees and investment to provide an income for the patient

Selling a property as an attorney or deputy

You are obligated to act in the best interests of the person you whose affairs you are managing at all times. This means you must obtain the best price for the property and not benefit yourself in any way from the transaction.

You must also be able to demonstrate that you acted in the individual’s best interests. For this reason, you should be careful to obtain several valuations of the property and obtain the best price for it.

You cannot buy it yourself or sell it to a friend or relative without the approval of the Court of Protection, as this is a conflict of interest.

If you would like further information please contact one of our Wills and Probate experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.