Selling someone's property as their attorney: what you need to know

Selling a property can be hard work, as anyone who has ever sold a property will readily testify. However, selling a property on behalf of someone else adds another layer of complexity to the whole process.

If you do find yourself selling a property on behalf of someone else, then chances are that you’re doing so as that person’s attorney and the purpose of the sale is to release funds to pay for nursing or care home fees.

If you find yourself in that position, then there are a few things you need to know.

Check your legal authority

Anyone selling a house as an attorney must be authorised by means of a power of attorney, which must be in writing in a prescribed form known as a Lasting Power of Attorney (LPA). There are two types of LPA, one for health and welfare matters and the other for finance and property matters. You must be appointed as an attorney under a finance and property LPA in order to be authorised to sell the property on behalf of the donor (that is, the person who has appointed you as their attorney).

Secondly, you need to ensure that the finance and property LPA has been properly registered with the Office of the Public Guardian. No LPA is valid unless and until it has been so registered. If you find that the LPA has not yet been registered, then you must ensure that registration is applied for and note that that process can take between 8-10 weeks.

Assuming the finance and property LPA has been registered, then you also need to check the terms of the power. LPAs are very flexible instruments and the donor is entitled to impose whatever conditions or restrictions they see fit. It is, therefore, a sensible precaution to check the document carefully to ensure that there are no such restrictions or conditions which would inhibit your power to sell the donor’s property.

You may be authorised under an older type of instrument known as an Enduring Power of Attorney (EPA). These were superseded in 2008 by LPAs but there are still quite a few EPAs around. If you are appointed as an attorney under an EPA then you still need to check the terms carefully but an EPA does not need to be registered unless the donor no longer has the mental capacity to make their own decisions. So, if you are selling a house for someone with dementia, you will need to register the EPA first.

Above all, never forget that you are under a constant duty to act in the donor’s best interests and this must guide you in the decision to sell the property and the way in which you carry out that duty.

Inform the property service providers

If the property will be standing empty pending sale, then it is important to advise the various service providers accordingly. Assuming the property is insured, then you must inform the insurers that the property is unoccupied. Failure to do so may result in them refusing to meet a claim. It is advisable to send a certified copy of the LPA or EPA document and ask them to address all correspondence to you. Also, beware of any conditions that the insurers may impose in respect of an empty property, e.g., a requirement for periodic inspections.

Similarly, you should ask the post office to redirect the donor’s mail to you and inform the utility providers that the property will be unoccupied until such time as it is sold. Last, but by no means least, inform the local authority as a lower rate of council tax is applied to unoccupied properties. You will likely need further certified copies of the LPA/EPA to do all of these things in order to prove that you are selling a house for someone in care or selling a house for an elderly relative.

Also, make arrangements to safely store the donor’s property and personal chattels, if necessary.

Obtain professional advice

You should not rely upon your own judgement when deciding upon which price to market the property. Doing so could open you up to a claim of negligence. Instead, seek a professional valuation. In fact, it is generally considered good practice to seek at least three different professional valuations in writing and decide upon the best one before placing the property on the market.

Bear in mind, at all times, that the duties under the Mental Capacity Act 2005. Seeking professional advice is as much about protecting yourself from criticism as it is about acting in the donor’s best interests.

For guidance on selling a property as an attorney, you should also speak to a solicitor who is experienced in both property and mental capacity matters.

For further information and trusted legal advice regarding selling a property and Lasting Powers of Attorney, get in touch with us at Carlsons Solicitors.