- When There Is a Power of Attorney
‘Donor’ – the person making the power of attorney
‘Attorney’ – the person with authority to make decisions
A Property and Financial Affairs power of attorney gives attorneys the authority to make decisions about a donor’s property. This authority extends to selling their home or other property providing this authority hasn’t been specifically excluded in the power of attorney.
Who Has the Authority Under a Power of Attorney?
The power of attorney will need to be checked to see who is appointed as an attorney as this will be the person (or people) that needs to sign any legal paperwork in relation to the sale including estate agent contracts. If there is more than one person named as an attorney, careful consideration must be given to how those attorneys are appointed. A ‘joint’ appointment means that all attorneys will need to sign papers in relation to the sale of the property. A ‘joint and several’ appointment means that only one of the attorneys will need to be a signatory.
To be used, a power of attorney must be registered with the Office of the Public Guardian (OPG). A registered document will bear the official OPG stamp together with the date of registration.
- When Someone Loses Mental Capacity
If someone loses mental capacity without having a power of attorney in place, a property and affairs Court of Protection order will be required to sell any property.
Who has the authority under a Court of Protection order?
The Court of Protection Order will name people (known as deputies) to deal with property and finances. As with a power of attorney, the Order must be read carefully to see whether deputies are appointed on a joint or joint and several basis to confirm how many people are required to sign documents in relation to the sale of property.
It is important to scrutinise the Order thoroughly to ensure deputies do have the specific authority to sell a house as this will not always be the case. Under a power of attorney, this right is a given unless specifically excluded, whereas under a Court of Protection Order, the authority to sell property must be explicitly provided by the Court.
- When There Is a Death
When someone dies whilst owning a property in their sole name, the person (or people) named on the Grant of Representation as the personal representatives of the estate will have the authority to sell the house and it will be those people that must sign any legal documents in relation to the sale including contracts with estate agents. The people named on the Grant of Representation may not be the deceased’s family members and may also differ from the people eventually inheriting the sale proceeds of the property.
If someone dies with a valid Will, their personal representatives will be called executors and will be named on a Grant of Probate. If someone dies without a valid Will, their personal representatives will be called administrators and will be named on Letters of Administration. Essentially these documents look very similar.
Working Together to Ensure a Smooth Sale
When selling a property on behalf of someone else – whether under a power of attorney, a Court of Protection order, or following a death – it is vital that the correct authority is in place from the outset to avoid delays or legal complications. This is where close collaboration between the Private Client and Residential Conveyancing teams becomes essential.
The Private Client team can ensure that powers of attorney, deputyship orders, or grants of representation are properly in place and correctly interpreted, whilst the Residential Conveyancing team can progress the legal sale process efficiently and in line with the relevant authority.
Working together, our teams help provide a seamless and fully compliant service for clients navigating the landscape of selling property on behalf of others.
Our Private Client and Residential Conveyancing teams are here to support. Get in touch if you need any help.
