Power of Attorney for Property
If you think that someone who has power of attorney, or is acting as deputy or guardian, is not acting in the best interests of the person they are responsible for, report your concerns to the Office of the Public Guardian
When a person has mental capacity (they're capable of making their own decisions) they can make a power of attorney to handle some of their decisions for them. They could make an ordinary power of attorney (OPA), a lasting power of attorney (LPA), or, before 2007, an enduring power of attorney (EPA). All of these can be given property POA
They are called the Donor, the person they are giving power of attorney to is called the Attorney. The Attorney must be over 18 and have mental capacity. In some cases the Attorney cannot be bankrupt, they can be removed as POA if they become bankrupt.
Ordinary Power of Attorney (also: limited power of attorney)
An ordinary power of attorney handles all of your financial affairs, a limited power of attorney is an ordinary power of attorney who only has authority to deal with certain matters. You will need to a solicitor to check that your limited power of attorney is drawn up very clearly so that there is no dispute over what decisions your Attorney can make for you.
Lasting Power of Attorney
A lasting power of attorney is similar to an ordinary power of attorney. However:
- You can make an LPA who makes decisions regarding health and care and one who makes decisions about property and financial affairs. Or, one LPA who makes decisions about both.
- An LPA has to be registered before it is used
- You can choose an LPA, but not give them authority to make decisions for you until you lose mental capacity. For example, if you have just been diagnosed with dementia, but still have mental capacity at this time.
An LPA can be ended if:
- The Donor ends it, while they still have mental capacity.
- The Attorney says they no longer want to be Attorney
- The Donor dies
- A property and finance LPA will end when either the Donor or the Attorney becomes bankrupt
Enduring Power of Attorney
EPAs were replaced by LPAs on 1st October 2007. However if it was made before then, you can still register it and it will still be valid. However, it only gives the attorney authority over financial and property affairs, not health and care. If you need to make a power of attorney to manage your health and care needs, make an LPA.
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Before you can use an EPA you must register it with the Office of the Public Guardian, you must notify several people before registering:
- The Donor
- Any other Attorneys for the Donor
- At least three of the Donor's nearest relatives
An EPA can be ended if:
- The Donor ends it, while they still have mental capacity
- The Attorney can resign
- The Court of Protection can end an EPA if they believe the Donor has abused their position; or,
- if they believe the donor made the EPA under excessive pressure or because of fraud
Is it safe to buy property on power of attorney?
You can buy and sell property on power of attorney. You will need legal advice if:
- The sale is below market value
- You want to buy the property yourself
- You're giving it to someone else
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You can be removed as Health and Care POA or Finance and Property POA if you abuse your position, or are found to be acting outside of the best interests of the Donor.
Can a power of attorney holder sell property to himself?
Yes. However, you will need to get legal advice.
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Can we register property with power of attorney?
Yes. HM Land Registry will need to know that the document binds the individual or company on whose behalf it was signed. They will check that the property POA:
- was validly executed as a deed
- was still in force at the date of the document
- authorised the attorney to take the action in question
- was, where necessary, made under the correct statutory provision
Why do I need a power of attorney for property?
There are a few reasons why you might want a finance and property POA, for example:
- You are temporarily incapacitated, for example you need to spend some time in the hospital and you want to give someone else the authority to manage your finances until you are recovered
- You have been diagnosed with a long term condition which may affect your mental capacity in the future. You want to choose someone as your power of attorney for property, finance, health and care decisions, who you trust to act in your best interests. You can also appoint an LPA 'just in case'
- You don't want to make decisions for yourself, you'd like to appoint an attorney to manage certain decisions for you. For example, you have a large property portfolio and you want someone else to make decisions and authorise them for you
- You are, or expect to be, out of the country for an extended, or repeated periods of time
Frequently Asked Questions
It is no longer possible to make a power of attorney. You can apply to the Court of Protection for a decision to be made on a particular matter. If there is an ongoing need to make decisions for someone who has lost their mental capacity you can apply to be made 'deputy'.
The deputy is usually a close friend or family member, but could be a professional from a panel, appointed by the Court of Protection, if there is no one suitable or willing. They must be able to show that they are acting in the best interests of the person without capacity and they are entitled to have your expenses paid, as well as time spent on duties.
The purpose of independent legal advice is to make sure that you understand the risks and implications of what you are agreeing to and that the decision to sign is yours and yours alone. The adviser must be able confidently to confirm that you are not being coerced into signing the documents.
If you are not on your own during the meeting then the solicitor will stop the meeting and you will need to rebook at a time where you are alone at a cost of £120 INC VAT. We will not refund any fee to you if you don't rebook.
It can be intimidating for the Donor to speak to a solicitor. Nonetheless, the solicitor has an obligation to them to ensure the Donor is fully aware of what they are consenting to when they make a power of attorney.
Our solicitor must communicate directly with the Donor making the power of attorney and not with any other party. If the Donor has legal capacity to sign then they don't need to have anyone with them during the meeting. If they don't have legal capacity then they can’t make a power of attorney.
A third party can help by setting up the room ready for the Zoom meeting, but they can’t answer for the Donor, communicate with us, be on the call with the Donor or sign any documents for them.
Do you need to get Power of Attorney for Property?
If you would like make a power of attorney for any reason, we can help.
If you have power of attorney for property and need legal advice to regarding a sale or purchase, we can help too.
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