COLUMN: Sale of actual property with everlasting energy of legal professional
IT CAN be a stressful time for families to be advised to sell their parents’ home for illness or because equity is required to fund nursing home fees, writes Catherine Richardson, senior attorney at Lupton Fawcett.
If you are acting under a permanent power of attorney (LPA) or vicarious arrangement and the property is not specifically prevented from being sold, you may already have the authority to place the property for sale on the open market by completing the necessary forms and distributing the property Net sales.
If there is a restriction in the LPA or Deputyship Order that prevents you from selling the property, you may need to file an application with the Court of Protection and explain why it is in the best interests of the person you are acting for. This must be done before the property is placed on the open market to avoid delays in a proposed sale.
Once the court is convinced that the property should be sold, it will issue an order authorizing the sale of the property. This is required by the sales attorney before they can take instructions.
Any appointed attorney or proxy must ensure that he is acting in the best interests of the incapacitated person. It is important that the property is not sold at an undervalued value.
Caution is also advised when property is jointly owned and only one of the owners is incapable of acting. This can happen when a property is owned by a married couple and one party has no capacity. If the spouse has been appointed as sole attorney, the protective court must appoint another party, a trustee, to act on their behalf. This can be lengthy, costly, and delays sales.
If you are selling a property or are appointed as an attorney or agent, contact Catherine Richardson, Residential Department at [email protected] or Paul Loftus, Trust, Wills and Estate Department at paul.loftus@luptonfawcett. Act or call 01904 611411.