Q&As

An attorney appointed under a financial lasting power of attorney for their mother (donor) would like to loan the donor money to pay for the donor’s care fees and secure a charge over the donor’s freehold property in return, rather than enter into a deferred payment scheme. Is the attorney permitted to secure a charge over the property or must the attorney seek permission from the Court of Protection?

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Produced in partnership with Graham Stott of 3 PB Barristers
Published on LexisPSL on 18/02/2019

The following Private Client Q&A Produced in partnership with Graham Stott of 3 PB Barristers provides comprehensive and up to date legal information covering:

  • An attorney appointed under a financial lasting power of attorney for their mother (donor) would like to loan the donor money to pay for the donor’s care fees and secure a charge over the donor’s freehold property in return, rather than enter into a deferred payment scheme. Is the attorney permitted to secure a charge over the property or must the attorney seek permission from the Court of Protection?

Under paragraph 7.58 of the Mental Capacity Act 2005 Code of Practice, an attorney under a lasting power of attorney (LPA) owes the donor a fiduciary duty to ‘keep the donor’s money and property separate from their own’.

In Re Buckley [2013] EWCOP 2965 (not reported by LexisNexis®), Senior Judge Lush emphasized the need for attorneys to avoid conflicts of interest and confirmed that an attorney must apply to the Court of Protection under section 23 of th

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