How can an attorney sell a donor’s property?

 

In England and Wales, an attorney can legally sell a donor’s property if they have the proper authority under a valid and registered Lasting Power of Attorney (LPA), or an older Enduring Power of Attorney (EPA). This legal arrangement allows a trusted individual (an “attorney”) to manage the donor’s financial affairs when they are unable to do so themselves, often due to loss of mental capacity.

There are two main types of documents that provide this legal authority:

  1. Lasting Power of Attorney (LPA) for Property and Financial Affairs 

    Introduced in 2007, an LPA allows a donor to appoint an attorney to handle their financial matters, including selling property. The LPA must be completed while the donor still has mental capacity and must be registered with the Office of the Public Guardian (OPG) before it can be used.

  2. Enduring Power of Attorney (EPA)

These were replaced by LPAs in 2007 but remain valid if signed by all parties before then. An EPA can be used without registration while the donor still has capacity, but must be registered with the OPG once the donor starts to lose capacity.

Once an LPA or EPA is registered and grants appropriate authority, the attorney can sell the donor’s property, but must follow several legal and ethical requirements:

  • Act in the donor’s best interests: The attorney must always prioritise the donor’s welfare, whether that involves funding care, accommodation, or other necessary expenses.
  • Stay within the scope of powers: The attorney must act strictly according to the authority granted by the LPA or EPA.
  • Ensure proper capacity assessment: If capacity is in question, it must be professionally assessed and documented.

If the property is jointly owned, or if there are potential disputes or concerns over the sale, the attorney may need approval from the Court of Protection before proceeding.

Key steps in selling the property

  1. Confirm legal authority: Ensure the LPA or EPA is valid and registered with no restrictions. Certified copies will be required for professionals involved in the sale, including solicitors and estate agents.
  2. Engage professionals: A solicitor and estate agent should be instructed to handle the legal and marketing aspects of the property sale.
  3. Act on the Donor’s behalf: The attorney manages the sale process, including reviewing offers, agreeing on terms, signing contracts, and completing the transfer.
  4. Manage proceeds responsibly: All proceeds from the sale must be used exclusively for the donor’s benefit and needs.

Attorney responsibilities and duties

Attorneys must adhere to strict fiduciary duties. These include:

  • Acting honestly, in good faith, and in the donor’s best interests
  • Avoiding conflicts of interest
  • Keeping accurate records
  • Not personally benefitting unless explicitly allowed in the LPA/EPA

Failing to uphold these responsibilities can result in legal consequences, including removal as attorney or even criminal charges.

In summary, selling a donor’s property under an LPA or EPA involves adhering to legal procedures and ethical standards. When done properly, it ensures the donor’s assets are managed with care, honesty and integrity.

 

 

Lisa-Marie Keefe

Senior Associate and the Head of Probate and Trust Property at Circe Law.

Lisa qualified as a Chartered Legal Executive in 2012, I am also a qualified Licensed Conveyancer, Probate Practitioner and a full accredited member of the Association of Lifetime Lawyers. I am the Regional Director for the Central branch of the Association of Lifetime Lawyers and a Dementia Friend.

Lisa is hybrid lawyer specialising in both Property matters and Private Client matters which often held provide advice in specialist areas which interlock. I have the experience, empathy and knowledge to combine my knowledge and skills to provide my clients with the service they require to achieve their wishes or the wishes of their deceased loved one with the best outcome.

Circe Law is an award winning, progressive, inclusive and highly specialised law firm, specialising in Private Client matters and focusing on supporting individuals and their families in all their personal matters.