Q&As

Where an individual B has a registered Financial lasting power of attorney (LPA) in favour of their spouse A, with whom they own a house as tenants in common in equal shares, and where A has lost capacity and now lives in a care home, can B (who continues to live in the property alone) sell the house and use the entire proceeds to buy a new property to live in and which will be held on trust for A and B in equal shares? Will the authority of the Court of Protection (COP) be required?

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Published on LexisPSL on 19/02/2019

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

  • Where an individual B has a registered Financial lasting power of attorney (LPA) in favour of their spouse A, with whom they own a house as tenants in common in equal shares, and where A has lost capacity and now lives in a care home, can B (who continues to live in the property alone) sell the house and use the entire proceeds to buy a new property to live in and which will be held on trust for A and B in equal shares? Will the authority of the Court of Protection (COP) be required?

Where an individual B has a registered Financial lasting power of attorney (LPA) in favour of their spouse A, with whom they own a house as tenants in common in equal shares, and where A has lost capacity and now lives in a care home, can B (who continues to live in the property alone) sell the house and use the entire proceeds to buy a new property to live in and which will be held on trust for A and B in equal shares? Will the authority of the Court of Protection (COP) be required?

The general rule is that any trustee functions delegated to an attorney must comply with the provisions of section 25 of the Trustee Act 1925 (TA 1925). However, section 1(1) of the Trustee Delegation Act 1999 (TDA 1999) provides an exception to this rule stating that an attorney can exercise a trustee function of the donor if it relates to land in which the donor has a beneficial interest.

Where an attorney is exercising a trustee function under TDA 1999, s 1(1), evidence of the donor’s beneficial interest in the land would need to be provided in accordance with TDA 1999, s 2. This requires the attorney to provide, within three months of completion, a statement that the donor of the lasting power of attorney has a beneficial interest in

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