Question: A few years ago my mother gave me Lasting Power of Attorney over her affairs. She appointed me jointly and severally with my sister, who lives in Australia.
It has now come to a time where she needs to move into residential care, and I need to sell her house to pay for her care fees as she has dementia. Can I do this, or do I need further authority?
Answer: Those appointed under a Lasting Power of Attorney, or LPA, can sell property on behalf of the donor — ie the person who appointed them — provided there are no restrictions contained in the LPA.
You can sell your mother's house without involving your sister, as you were both appointed to act jointly and severally, which means that each of you as attorney can make decisions individually and independently of the other.
The LPA must be registered with the Office of the Public Guardian before it can be used. See gov.uk/browse/births-deaths-marriages/lasting-power-attorney.
If your mother is the sole owner of her house another person may need to be appointed as a trustee before you can sell it. The solicitor dealing with the sale should advise you in this regard. If your mother does not have a valid LPA or Enduring Power of Attorney — EPA — a deputy needs to be appointed before her house can be sold.
A deputy is a person or body who, instead of being appointed by the donor, is appointed by the Court of Protection. This needs to be done when a person has lost the capacity to make decisions in relation to their finances and they have not made, or do not have, a valid LPA or EPA.
Do note that if there is no valid LPA or EPA, unless the Court of Protection gives specific legal authority via a deputyship, no one can legally manage your mother's property or finances.
What's your problem?
If you have a question for Fiona McNulty, email email@example.com. We regret that questions cannot be answered individually.
These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.