Understanding Power of Attorney: Selling a Property for a Loved One

Since 1986, Langford Rae Property Agents has been dedicated to helping families and individuals move home across Chelsfield, Orpington, and the picturesque villages of Sevenoaks, including Halstead, Knockholt, and Badgers Mount. Over the decades, we have often been approached by relatives of property owners who wish to discuss the marketing and sale of a loved one’s home. In these situations, it is vital to understand the legal framework surrounding Power of Attorney (POA) and the rights and responsibilities it confers, especially when it comes to instructing an estate agent to sell a property.

A Power of Attorney is a legal document that allows one person (the attorney) to make decisions and act on behalf of another (the donor), particularly when the donor is unable to manage their own affairs due to illness, absence, or loss of mental capacity. When it comes to selling property, the type of Power of Attorney in place is crucial. There are two main forms relevant to property transactions: the Lasting Power of Attorney (LPA) and the Enduring Power of Attorney (EPA).

A Lasting Power of Attorney for Property and Financial Affairs is the modern standard in the UK. It must be registered with the Office of the Public Guardian before it can be used, even if the donor still has mental capacity. Only once the LPA is registered and the attorney is specifically authorised to deal with property and financial matters can they instruct an estate agent, such as Langford Rae, to market and sell the property. The LPA document may contain specific restrictions or conditions set by the donor, so it is essential to review the document carefully to ensure there are no limitations that would prevent a sale. If the LPA is not yet registered, the attorney must apply for registration, a process that can take several weeks, before any property transaction can proceed.

Enduring Powers of Attorney, which pre-date LPAs and could only be created before 2007, remain valid if they were executed before that date. Unlike LPAs, an EPA comes into effect as soon as it is signed by both the donor and the attorney. However, if the donor loses mental capacity, the EPA must be registered with the Office of the Public Guardian before it can be used to sell property. The registration process for EPAs is more complex and involves notifying the donor and close relatives, who may object to the registration if they have concerns. EPAs only cover property and financial matters, not health and welfare decisions.

For both types of Power of Attorney, the attorney’s authority must be clear and specific regarding property transactions. The attorney is legally obliged to act in the donor’s best interests at all times. This means making decisions that benefit the donor, such as ensuring the property is sold at a fair market value and that the proceeds are used for the donor’s care or benefit. Attorneys must keep detailed records of all decisions and transactions, maintain transparency with other family members, and always act within the powers granted by the POA document.

It is important to note that simply being a relative of the property owner does not confer the right to instruct an estate agent or sell the property. Unless you have been formally appointed as an attorney under a valid and registered LPA or EPA, you cannot legally make decisions about the sale of someone else’s home. If you are considering selling a relative’s property and are not sure if you have the correct legal authority, it is essential to seek advice and ensure all documentation is in order before proceeding. Acting without proper authority can delay the sale and may expose you to legal liability.

The process of selling a property under Power of Attorney involves several key steps. First, the attorney must confirm that the POA document is valid, registered, and grants the necessary authority for property transactions. When instructing Langford Rae Property Agents, the attorney will need to provide certified copies of the POA and proof of their identity. We will then work with the attorney to prepare the property for sale, obtain a professional valuation, and ensure all legal requirements are met throughout the marketing and conveyancing process. If there are multiple attorneys, it is important to check whether they are appointed jointly or jointly and severally, as this affects how decisions about the sale can be made.

There are also safeguards in place to protect the donor from financial abuse. The Mental Capacity Act 2005 sets out strict rules for attorneys, including the duty to act in the donor’s best interests, avoid conflicts of interest, and not profit personally from their position. If an attorney is found to be acting outside these rules, the Office of the Public Guardian or the Court of Protection can intervene, and the attorney may be removed or face legal consequences.

In some cases, a Deputy appointed by the Court of Protection may act instead of an attorney, particularly if no valid POA is in place and the donor has already lost mental capacity. The Deputy’s authority is similarly defined by the court order and must be carefully followed.

At Langford Rae Property Agents, we understand that selling a loved one’s home can be an emotional and complex process, especially when acting under a Power of Attorney. Our experienced team is here to guide you every step of the way, ensuring that all legal requirements are met and that the sale proceeds smoothly and efficiently. We are always happy to advise attorneys and family members on the necessary documentation and procedures, drawing on our decades of experience in Chelsfield, Orpington, and the surrounding villages of Sevenoaks.

If you are considering selling a property under Power of Attorney, or if you have questions about your rights and responsibilities, please contact Langford Rae Property Agents. We are committed to providing clear, professional advice and supporting you throughout the process, just as we have done for our community since 1986.

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