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Selling jointly owned property with PoA

sarahsea

Registered User
Dec 19, 2017
66
Apologies - I think this has appeared on other threads, but I couldn't find a definitive answer to my question and I wondered if anyone has been in this situation and can tell me how they dealt with it? I need to downsize as my husband is in hospital and will shortly be moving to a care home. The house is much too big and expensive for me to stay in. We own the property jointly and I have PoA for finance and property for my husband. I understand that the new property will also be jointly owned and any equity will be split equally.
I have read (on this site I think) that I cannot sign the property contracts on behalf of my husband. I am his only attorney. To clarify the situation I emailed the OPG and asked if someone else e.g. the certificate provider on the PoA could sign on behalf of my husband, or would I need to pay a solicitor to do it. The reply was ambiguous:

"Regarding the sale, if you as attorney are also a part owner of the same property then there may be a conflict of interests (you cannot represent yourself and your husband). It maybe necessary to have a trustee appointed to represent your husband in these transactions.
Unfortunately, the Office of the Public Guardian (OPG) cannot provide legal advice and you may wish to seek independent legal advice regarding how this can be setup."

I wasn't really looking for legal advice, I wanted to know what is the correct way to deal with this and I thought the OPG would be able to tell me, but their use of the word "maybe" has confused me. Then I rang the OPG to ask again and they suggested that I should sign the contracts on behalf of my husband and appoint a trustee to sign for me. I don't know how to do this and I'm concerned that having someone else sign for me could create problems. Although, to be honest, I don't know what I'm talking about. Should I just approach a solicitor and ask them to act as a trustee for my husband? Thank you for reading this and I'd be very grateful for any information / experiences you can share.
 

nitram

Registered User
Apr 6, 2011
19,739
North Manchester
As you will be using a solicitor to handle the sale of the property ask them to organise a trustee to act on behalf of either you or your husband, it may be easier if the trustee acts on your behalf as you have capacity. You will be the one deciding that it in his best interests to sell.
 

Beate

Registered User
May 21, 2014
11,849
London
I had a similar question in 2016 when it came to renewing our private tenancy, and John couldn't sign anymore. Someone said I would not be allowed to sign for the both of us as I was living there too. I emailed the COP and their answer was short and to the point:

"The Court does not believe that to be true. If you have a registered Lasting Power of Attorney, there should be no conflict of interest."

So either they have changed their tune or it depends on who answers your query. Best to double check with a solicitor, but I took them at their word back then.
 

RosettaT

Registered User
Sep 9, 2018
381
Mid Lincs
May I just ask as I can aee this affecting myself in the future, do you have to go through the courts to appoint a trustee or can a solicitor sort all the paperwork out?
 

nitram

Registered User
Apr 6, 2011
19,739
North Manchester
May I just ask as I can aee this affecting myself in the future, do you have to go through the courts to appoint a trustee or can a solicitor sort all the paperwork out?
I think the answer is the solicitor can handle it, ask them.
Assumes LPA, deputyship will involve the COP
 

jugglingmum

Registered User
Jan 5, 2014
5,523
Chester
I think the transfer of property is different to a rental agreement
I agree with this, a formal legal conveyance is required for a transfer of property title, with appropriate documentation being filed with the correct authorities (hmrc for sdlt - transaction is exempt but documentation still needed and land registry).
 

Shedrech

Volunteer Moderator
Dec 15, 2012
8,541
Yorkshire
hi @sarahsea
the OPG are trying to help you .... they can't give legal advice (ie cannot be specific) so have to put in the 'maybe' to make their comment a suggestion rather than advice
so they are telling you what needs to be done
an experienced solicitor/conveyancer will have come across this before

seems to me nitram's suggestion in post 2 is the way to go
 

sarahsea

Registered User
Dec 19, 2017
66
Thank you for your comments and suggestions. Yes, it seems like the best thing to do is to find a solicitor who has dealt with this kind of sale before.