Q&As

HM Land Registry (HMLR) Practice Guide 9 provides, at paragraph 6, that where the seller of property is represented by someone holding an unregistered enduring power of attorney (EPA) older than 12 months, HMLR might require evidence of non-revocation by way of a statement of truth by the buyer or a certificate from their solicitor. In such a case, is the buyer's legal representative required to make inquiries beyond the papers, or is that the role of the seller's legal representative (ie to take steps to check EPA validity and ultimate client confirmation)? Is there any guidance or case law of the responsibilities of the respective lawyers in such a case?

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Published on LexisPSL on 19/06/2020

The following Property Q&A provides comprehensive and up to date legal information covering:

  • HM Land Registry (HMLR) Practice Guide 9 provides, at paragraph 6, that where the seller of property is represented by someone holding an unregistered enduring power of attorney (EPA) older than 12 months, HMLR might require evidence of non-revocation by way of a statement of truth by the buyer or a certificate from their solicitor. In such a case, is the buyer's legal representative required to make inquiries beyond the papers, or is that the role of the seller's legal representative (ie to take steps to check EPA validity and ultimate client confirmation)? Is there any guidance or case law of the responsibilities of the respective lawyers in such a case?

HM Land Registry (HMLR) Practice Guide 9 provides, at paragraph 6, that where the seller of property is represented by someone holding an unregistered enduring power of attorney (EPA) older than 12 months, HMLR might require evidence of non-revocation by way of a statement of truth by the buyer or a certificate from their solicitor. In such a case, is the buyer's legal representative required to make inquiries beyond the papers, or is that the role of the seller's legal representative (ie to take steps to check EPA validity and ultimate client confirmation)? Is there any guidance or case law of the responsibilities of the respective lawyers in such a case?

Following the repeal of the Enduring Powers of Attorney Act 1985 by the Mental Capacity Act 2005 (MCA 2005), with effect from 1 October 2007, no enduring power of attorney (EPA) can be created after that date. However, an EPA created before that date remains valid, and will survive the subsequent mental incapacity of the donor of the power. Once the donor becomes mentally incapable, however, the attorney under the power cannot do anything under it (save for certain exceptions) unless or until the EPA is registered with the Office of the Public Guardian.

HM Land Registry’s requirements in relation to dispositions effected under an EPA are set out in Land Registry Practice Guide (LRPG)

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