You can sell a property using the Power of Attorney before death in the UK.
Imagine this scenario: Your elderly parent or loved one can no longer manage their affairs, and you’ve been granted power of attorney to act on their behalf. The question arises: Can you sell their property while they’re still alive?
If the POA document explicitly grants the authority to sell property, the attorney can legally sell the principal’s property before their death. However, the attorney must act in the donor’s best interests and follow any instructions or limitations outlined in the POA.
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Can Power of Attorney Sell Property Before Death in the UK?
In the UK, a Power of Attorney (POA) can grant legal authority to an appointed person, known as the attorney, to act on behalf of the donor (the person granting the POA) in various matters, including selling the property if they become mentally incapacitated or unable to make decisions for themselves.
Understanding Power of Attorney (POA) in Depth
There are two main types of POA:
Lasting Power of Attorney (LPA)
An LPA allows the donor to appoint an attorney to manage their property and financial affairs if they lose mental capacity. To be valid for property transactions, the LPA must be registered with the Office of the Public Guardian. An LPA is a more comprehensive and long-lasting arrangement that remains valid even if the donor loses mental capacity.
There are two types of LPAs:
- Property and Financial Affairs LPA: The attorney can decide about the donor’s property, finances, and money.
- Health and Welfare LPA: This LPA allows the attorney to make decisions about the donor’s health and personal welfare.
Enduring Power of Attorney
Enduring Powers of Attorney (EPAs) were legal documents that authorised someone to manage another’s property and financial decisions before Lasting Powers of Attorney (LPAs) were introduced in 2007. While it is no longer possible to create a new EPA, existing EPAs remain valid and can still be used.
Ordinary Power of Attorney (OPA)
An OPA is a temporary arrangement that allows the attorney to make decisions on the donor’s behalf while the donor still has mental capacity. It becomes invalid if the donor loses mental capacity.
Authority to Sell Property
If the Power of Attorney (POA) document specifically allows it, the attorney can legally sell the principal’s property before they pass away. Nonetheless, the attorney is required to act in the best interests of the principal and adhere to any directives or restrictions specified in the POA.
Best Practices
It’s important to note that an LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. This process ensures that the donor has the mental capacity to understand the implications of granting an LPA.
Remember, a POA is only valid until your loved one is still alive, and you will need a Will and apply for a Grant of Probate if they pass away.
Real-Life Example
A visitor on our website recently shared their experience of selling their mother’s property using a Property and Financial Affairs LPA. They faced challenges when their sibling contested the sale, claiming it wasn’t in their mother’s best interests. The siblings argued that their mother’s wish was to keep the property in the family, and selling it would go against her desires.
After a lengthy legal battle and providing evidence that the sale was necessary to fund their mother’s care, the sale went through. However, the process was emotionally draining and costly, highlighting the importance of clear communication and documentation when selling property with an LPA.
Had they considered selling to a company like Property Saviour, they could have avoided the family dispute and expedited the sale process, ensuring a fair price and a smooth transaction.
What are the requirements for selling property with power of attorney?
To sell property using a power of attorney, you must:
- Be named as an attorney in a valid, registered LPA or EPA
- Have specific authority to sell property within the document
- Act in the best interests of the person who granted the power of attorney
- Comply with any conditions or restrictions in the power of attorney
The power of attorney must be registered with the Office of the Public Guardian before it can be used.
Can an attorney sell property if the donor still has mental capacity?
If the person who granted the power of attorney (the donor) still has mental capacity, the attorney can only sell property with their permission, unless the power of attorney specifies otherwise.
What if the donor has lost mental capacity?
If the donor has lost mental capacity, the attorney can make decisions about selling property on their behalf, as long as it’s in the donor’s best interests.
Limitations & Requirements
Certain limitations and requirements may apply when selling property under a POA:
- Type of Property: The POA may specify the types of property that can or cannot be sold.
- Time Limitations: There could be time frames within which the property must be sold.
- Financial Limitations: Caps on the amount of money that can be handled or received from the sale.
- Judicial Approval: In some cases, the sale may require judicial approval, especially if there are specific limitations in the POA.
- Co-ownership and Trustees: If the attorney co-owns the property with the principal, a second trustee may need to be appointed to handle the sale proceeds.
Acting in the Principal’s Best Interests
Regardless of the POA’s terms, the attorney must always act in the principal’s best interests when selling the property. This includes considering the principal’s financial needs, living arrangements, and overall welfare.
By understanding the legal framework surrounding POAs and property sales in the UK, attorneys can ensure they fulfil their responsibilities and comply with the relevant laws and regulations.
How does an attorney determine if selling property is in the donor’s best interests?
When deciding whether to sell property, an attorney should consider:
- The donor’s past and present wishes
- The donor’s beliefs and values
- The views of family members and carers
- The donor’s current and future needs
It’s advisable to keep a record of the decision-making process and reasons for selling.
Are there any restrictions on selling property with power of attorney?
Some restrictions may apply:
- The attorney cannot sell property to themselves without court approval
- If the property is jointly owned, all owners must agree to the sale
- The attorney must act within the scope of their authority as defined in the power of attorney document
What documentation is needed to sell property with power of attorney?
When selling property with power of attorney, you’ll need:
- The original or certified copy of the registered power of attorney
- Proof of the attorney’s identity
- Evidence of the donor’s mental capacity assessment (if applicable)
How does selling property with power of attorney differ from a standard sale?
Selling property with power of attorney involves additional steps:
- Providing the power of attorney document to the conveyancer
- Signing documents as attorney, not as the property owner
- Potentially longer processing times due to extra checks
What happens to the proceeds from a property sale?
The proceeds from a property sale must be:
- Used for the donor’s benefit
- Kept separate from the attorney’s personal funds
- Invested appropriately if not immediately needed
Can an attorney profit from selling the donor’s property?
No, an attorney cannot profit personally from selling the donor’s property. All actions must be in the donor’s best interests.
What if there are multiple attorneys?
If there are multiple attorneys, they must act according to how they were appointed:
- Jointly: All attorneys must agree on decisions
- Jointly and severally: Attorneys can make decisions independently
Can a power of attorney be challenged?
Yes, a power of attorney can be challenged if there are concerns about:
- The attorney’s actions
- The validity of the power of attorney
- The donor’s capacity when the power of attorney was created
Challenges can be made through the Office of the Public Guardian or the Court of Protection.
What happens to the power of attorney after the donor’s death?
A power of attorney ceases to be valid upon the donor’s death. At this point, the executor of the will or administrator of the estate takes over responsibility for property sales.
| Type of Power of Attorney | Can Sell Property? | Requires Registration? |
|---|---|---|
| LPA for Property and Finance | Yes | Yes |
| Enduring Power of Attorney | Yes | Only if donor lacks capacity |
| General Power of Attorney | Yes | No |
What are the alternatives if there’s no power of attorney?
If there’s no power of attorney in place and the property owner lacks capacity, you may need to:
- Apply to the Court of Protection to become a deputy
- Seek a specific court order to sell the property
These processes can be lengthy and costly, highlighting the importance of setting up a power of attorney in advance.
How can attorneys ensure they’re acting correctly?
To ensure proper conduct when selling property with power of attorney:
• Seek legal advice if unsure about your authority or responsibilities
• Keep detailed records of all decisions and transactions
• Act transparently and involve the donor in decisions where possible
• Consider getting professional valuations to ensure fair market price
Seeking Professional Advice
It’s recommended to seek legal advice from a solicitor or professional advisor when selling property with an LPA.
They can ensure that all legal requirements are met and guide you through the process.
Selling Property After the Donor’s Death
- An LPA becomes invalid upon the donor’s death.
- To sell the property after the donor’s death, the executor or administrator must obtain a Grant of Probate or Letters of Administration, respectively.
- The process involves valuing the estate, paying any inheritance tax due, and obtaining the necessary legal authority to sell the property.
Limitations of a POA
A POA cannot change the donor’s will or override their wishes regarding the distribution of their estate. The attorney must act in the donor’s best interests and cannot make decisions that benefit themselves or others over the donor.
Comparing Different Ways to Sell
Attorneys often approach us after trying an estate agent or auctioneer unsuccessfully.
In this table, we have compared different ways to sell so that you can make an informed decision:
Method | Pros | Cons |
You are likely to achieve close to market value. Best way to sell if you aren’t in a rush. | Extensive timeframe Problematic property resulting in abortive sales The quality of agents can vary
| |
Auction | Quicker than an estate agent If property sells, contracts are exchanged quickly More certainty than estate agent sale | Upfront entry fees Paying for legal fees Delay of up to 3 months Complex types of auctions A low guide price means a degree of risk |
Property Saviour | Fast, hassle-free sale No fees to pay Expertise in handling complex situations Completion in days | You won’t get the full market as we will be looking to make a small profit margin of 20% before our costs |
Sell to Property Saviour for a Seamless Experience
If you are an attorney thinking of selling a property, contact us. We are experts at handling complex situations. We are sympathetic and here to support you.
Sell with certainty & speed
Property Saviour Price Promise
- The price we’ll offer is the price that you will receive with no hidden deductions.
- Be careful with ‘cash buyers’ who require a valuation needed for a mortgage or bridging loan.
- These valuations or surveys result in delays and price reductions later on.
- We are cash buyers. There are no surveys.
- We always provide proof of funds with every formal offer issued.
We'll Pay £1,500 Towards Your Legal Fees
- No long exclusivity agreement to sign because we are the buyers.
- You are welcome to use your own solicitor.
- If you don’t have one, we can ask our solicitors for recommendations.
- We share our solicitor’s details and issue a Memorandum of Sale.
Sell With Certainty & Speed
- Our approach is transparent and ethical, which is why sellers trust us.
- 100% Discretion guaranteed.
- If you have another buyer, you can put us in a contracts race to see who completes first.
- Complete in 10 days or at a timescale that works for you. You are in control.
