Top Tips if you are Selling Someone’s House as their Attorney

Check the Type of Power of Attorney

  1. Enduring Power of Attorney (EPA). In October 2007 these were replaced by Lasting Power of Attorney deeds. EPAs can still be used if they were made and signed on or before 30th September 2007. An EPA only covers the property and financial affairs of the person who made it.
  2. Lasting Powers of Attorney (LPA) were introduced on 1st October 2007 to replace EPAs . There are two types one in respect of property and financial affairs and the other in respect of health and welfare decisions. A person can make one or both.

If you are selling a house as an attorney for someone it is important to check which kind of Power of Attorney you have. To act on the sale of a property you have to have been appointed in an EPA or a Property and Financial LPA. A Property and Financial Affairs LPA has to be registered to be valid, whereas an EPA only has to be registered if the person who has made it has become or is becoming mentally incapable of looking after his or her own financial affairs.

Check the Power of Attorney Deed is Registered

If you are an Attorney under an EPA and the person you act for (‘the Donor’) has lost his or her mental capacity the EPA must be registered with the Office of the Public Guardian for it to remain valid. It takes a minimum of 6-8 weeks for an EPA to be registered.

If you intend to sell the Donor’s house it is advisable to start the registration process well before a prospective buyer is found. You may lose a buyer, or delay a sale, if the EPA is not registered.
The EPA does not need to be registered with the Office of the Public Guardian if you are acting under an EPA and the Donor still has mental capacity to deal with his or her property and financial affairs. The EPA is legally effective and the sale can proceed.

If you are acting as an Attorney under a Property and Financial Affairs LPA, it is not legally valid until the LPA is registered at the Office of the Public Guardian, even if the Donor still has the mental capacity to deal with his or her own property and financial affairs.

Check Whether there are any Restrictions in the EPA/LPA preventing you from acting

When the Donor made the LPA he or she may have placed in it a restriction. For instance the Donor may have specified that the LPA was not to be effective (even if it has been registered) unless a medical practitioner certifies that the Donor is incapable of dealing with his or financial affairs.

The Donor may have restricted the use of the LPA/EPA to the operation of bank accounts only for instance, so that the LPA/EPA may not actually provide you with the power to sell the property. If this is the case, you need to obtain the consent of the Court of Protection before you can sell the Donor’s house.

Check the Donor’s Will before Clearing the Donor’s House

As an Attorney, you have no automatic legal right to see a copy of the Donor’s will. However, if the Donor has previously made a copy available to you, or the EPA/LPA gives you specific authority to obtain a copy of the Donor’s will, check that you do not sell or give away something that is in the house that has been left to someone in the Donor’s will.

Notify the Property Insurance Providers

If the property is permanently unoccupied you must advise the buildings and contents insurance providers as soon as possible. If a claim arises, for instance a break in occurs, or burst water pipe causes damage and the property and the insurers were not notified the property was unoccupied the insurers may refuse to pay out under the terms of the policy.
Send a certified copy of the LPA/EPA and ask them to send all correspondence relating to the insurance policy to you.

After notifying the Insurers, check any amended policy you receive. If a property is unoccupied it is usually a term of the policy that the property is inspected by you on a regular basis, sometimes up to once a week.

Make sure that you comply with the Insurer’s requirements about protecting the property over the winter months. Insurers usually make it a term of the policy that the water system is drained down, or that the heating is left to come on during the day at a certain temperature to prevent pipes bursting.

Notify the Council Tax Department and Water Supplier

If the person you are an Attorney for is a permanent resident in a nursing home, he or she is exempt from paying council tax on the property. Likewise, United Utilities no longer charge water rates if a property has become unoccupied because the owner has moved into a nursing home permanently.

Arrange Postal Re-Direction with the Royal Mail

As an Attorney you can arrange for the Donor’s mail to be re-directed to you. This maybe beneficial if you live some distance from the Attorney’s property or you can only make infrequent visits to collect the Donor’s mail. You can pick up a form from any Post Office or apply on line at www.royalmail.com/Post-Redirection

There is a fee payable but this can be reimbursed from the Donor’s fund as an Attorney expense. Keep the receipt as a record as the Office of the Public Guardian may call upon you to produce an account of all payments made on behalf of the Donor.

Obtain Professional Advice about the Sale Price of the Property

As an Attorney you are under a duty under the Mental Capacity Act 2005 to act in the best interests of the Donor. This means obtaining the best deal possible for the sale of the property. It is advisable to obtain 3 written market appraisals of the property from local estate agents. It is unlikely all three will suggest the same price. A rule of thumb is that the middle value is usually the most realistic. Obtain the written advice of the agent when an offer is received.

Investing the Proceeds of Sale of the Property

Before investing the proceeds of the sale of the property it is advisable that you seek the opinion of at least one independent financial adviser. ‘Which’ magazine provide some tips on how to locate a good financial adviser. Details can be found on its website at www.which.co.uk/money/tax/guides/chossing-a-financial

Contact Us

For more information about what is involved in making a Lasting Power of Attorney contact Wendy Randall by phone on 0800 781 3894 or email wendyrandall@phrsols.co.uk.