Saturday, 31 January 2015

What to look for when purchasing a property sold through a power of attorney?

Buying a property from a person acting under a Power of Attorney should, according to Michael Riches, Trainee with MJP Conveyancing, pose no issue if all the relevant checks are made by your conveyancer. 

Some people may be concerned that the attorney does not have the right to sell the property; however, an explanation of what an attorney is and what powers they have should calm those concerns.

What is a Power of Attorney

A Power of Attorney is a legal document which allows someone (the Donor) to appoint someone to act on their behalf (the Attorney or Donee) and make decisions for them. These decisions can be in relation to Property and Financial matters or Health and Welfare matters.

There are two types of powers, a General Power of Attorney and a Lasting Power of Attorney (previously known as an Enduring Power of Attorney).

A General Power only lasts while the Donor has mental capacity and may cease to have effect after a set period and will cease to have effect if the Donor loses mental capacity. In a property transaction any person can appoint an attorney under this general power to act on their behalf and sign all necessary documents.

A Lasting Power is only effective when registered at the Office of the Public Guardian. These are effective even when the Donor loses mental capacity, indeed these are often entered into in anticipation of the Donor becoming ill and losing capacity. The key to this Power though is that the Power must be granted and entered into when the Donor still has capacity and is fully aware of the arrangement and implications of the document.

As a Buyer you should be aware of who you are purchasing from and in what capacity they are acting. If you are aware you are Purchasing from someone acting under a Power of Attorney and the Power is still valid then your right to a good title is protected. However, if it is proved that you knew the Power was invalid or had expired or had previous knowledge about the circumstances in which the attorney’s power would be terminated then this right is not protected and you will not be able to register the property in your name.

When instructing your conveyancer you should make them aware at the outset, if you yourself are aware, that the property is being sold by someone acting under a Power of Attorney.  If this is not immediately apparent then it will be revealed within the contract documentation sent by the Seller’s conveyancer. The checks your conveyance should make, and you should ensure are made, are: 

Has a fully certified copy of the Power been supplied?

Is the Donor still alive – if the Donor is deceased then the Power automatically ceases to have effect and the attorney cannot act in that capacity

What type of Power is it – in a conveyancing transaction the Power must allow for the attorney to act in property and financial matters.

How many Donees are acting – this is important as both attorneys must agree to the sale and sign the documentation.

If all of the above is provided and correct then your right as a Buyer to a good title is protected.

Further guidance can be found on the www.gov.uk website. This provides a lot of information on the Power of Attorney. Furthermore, if you would like to sell a property under a Power of Attorney it details the process to appoint an Attorney.

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk

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