LPA and buying/selling property help! x

[dinkysarah]

Can anyone help with the process of moving house when LPA is involved? My poor parents are having a nightmare.

My dad has dementia and in 2017 I set up LPA for him with my mum as the attorney. Further down on the form it lists myself and my brother as replacement attorneys should anything happen to my mum

Now my mum and dad own their home and are moving to a house which is being adapted to meet my dad’s needs plus is closer to my brother who can help with care etc. The sale of their house will fully find the purchase of the new house. The solicitor handling the conveyancing is making a right meal of it all and doesn’t seem to know what he is doing. He originally said that my mum couldn’t act as attorney for my dad to purchase the new property as she is one of the purchasers so they said she can’t act on his behalf if she is also involved as a buyer. Eventually after weeks of wrangling they have sent out a letter to add my bother as a second attorney. They seem to be making everything as complicated as possible. I just wondered if anyone else had been in this position where a couple own a property jointly and want to sell up to move but the LPA is causing a problem? As my brother is already on the LPA as a replacement attorney could that not suffice or do we have to go through the process of setting up a new LPA with him and my mum as joint attorneys? It doesn’t help that the solicitor sounds like he’s just out of school and knows absolutely nothing about all of this!

Any help much appreciated

 

[Shedrech]

hi @dinkysarah
my understanding is:

if your dad is considered to still have capacity to make financial decisions then the LPA is a side issue as he can sign documents for himself

if he no longer has capacity then his Attorney, your mum, takes on the responsibility of managing her husband's affairs ... she cannot, however, sign documents for the sale of the house on his behalf because she is also signing for herself, as I understand it a trustee needs to be appointed to act on your dad's behalf ... is the letter you mention regarding your brother as trustee (rather than attorney)

a replacement Attorney can only take on resposibilities should the Attorney ie your mum no longer be able to act, so no your brother cannot simply stand in

another LPA can only be put in place if your dad has capacity and chooses himself to rescind the existing LPA and set up a new one ... if your dad is considered to have capacity to do this, surely he has capacity to be involved in the legalities of the sale

the Gov site may help
https://www.gov.uk/lasting-power-attorney-duties/start-using-power

I'd suggest your mum contact the OPG by phone or email to ask them about how to act, I have found the advisors approachable, patient and helpful

Office of the Public Guardian
customerservices@publicguardian.gov.uk
Telephone: 0300 456 0300
Textphone: 0115 934 2778
Monday, Tuesday, Thursday, Friday, 9am to 5pm
Wednesday, 10am to 5pm

 

[jenniferpa]

I agree with shedrech here - the issue is not with the lpa but the realities of the trustee act, which means that your mother cannot sign as both herself and as her husbands attorney. The answer is to appoint someone to be trustee (probably in this case your brother) to act just in this matter on behalf of your father. It doesn’t mean you need a new lpa or anything.

Have you spoken to the solicitor yourself? I’m wondering whether the confusion is with them or elsewhere.

 

[Shedrech]

hi @dinkysarah
I just did an internet search for:
appointing a trustee to sell a property

my results
https://www.google.com/search?q=app...id-tmobile-gb&sourceid=chrome-mobile&ie=UTF-8

and found on the Gov site
https://www.gov.uk/joint-property-ownership/selling-when-an-owner-has-lost-mental-capacity
not sure what applies in your circumstances, but showing to your solicitor may help

is there another solicitor in the partnership who may know more?

 

[nitram]

I agree with shedrech here - the issue is not with the lpa but the realities of the trustee act, which means that your mother cannot sign as both herself and as her husbands attorney. The answer is to appoint someone to be trustee (probably in this case your brother) to act just in this matter on behalf of your father. It doesn’t mean you need a new lpa or anything.

Totally in agreement.
This problem regularly occurs on DTP.
Perhaps some/many solicitors are in need of a 'refresher course'.