Q&As

When instructed to act on a sale by an attorney under a registered lasting power of attorney, does a solicitor have to take steps to check either that the donor does not have capacity or, if the donor has capacity, that they are happy for the solicitor to deal with the attorney in connection with the sale?

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Produced in partnership with Emma Holland of Stewarts Law
Published on LexisPSL on 05/09/2019

The following Private Client Q&A produced in partnership with Emma Holland of Stewarts Law provides comprehensive and up to date legal information covering:

  • When instructed to act on a sale by an attorney under a registered lasting power of attorney, does a solicitor have to take steps to check either that the donor does not have capacity or, if the donor has capacity, that they are happy for the solicitor to deal with the attorney in connection with the sale?

Given the lasting power of attorney (LPA) has been registered, it is assumed that it is in the requisite prescribed form and that evidence of its registration can be provided. It is also assumed that the attorney in question is either the sole attorney or has authority to act severally in respect of this issue (rather than jointly) and that the sale is in respect of land.

Provided the formalities of section 9(2) of the Mental Capacity Act 2005 (MCA 2005) have been complied with, the donor would have been able to confer authority on their attorney by way of LPA to make decisions about their property and affairs or specified matters in this regard, including to make decisions where they no longer have capacity.

The solicitor should review the LPA itself to establish in what circumstances it is specified that the attorney can make decisions for the

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