The importance of taking advice when acting under a Lasting Power of Attorney

I was asked for some advice recently by an Attorney who was acting on behalf of her mother, Marjorie, who no longer had capacity to manage her own affairs.

The Attorney, we will call her Dawn, wanted to sell Marjorie’s house, Primrose Cottage.Dawn had been told by her friend, Damian, that she could do whatever she wanted as she was Marjorie’s Attorney.The solicitors acting for her in relation to the sale had asked her whether Marjorie had a Will, and if so, what the Will said and whether there was any mention of Primrose Cottage in it.

Dawn did not know why the question was being asked, and wanted some advice.

I explained that in simple terms, if Primrose Cottage was sold, then if it was being left to a particular beneficiary, or beneficiaries, under the Will, then that clause would fail if Marjorie no longer owned Primrose Cottage at the time of her death.

It was important for Dawn to obtain advice because if Primrose Cottage was included as a specific gift in Marjorie’s Will then either Dawn may lose out if she was that beneficiary, or the disappointed beneficiary under the Will may have a course of action against her for breach of trust – possibly a lose-lose scenario.

Various options were available including:

1.Making an application to the Court of Protection for authority to sell the property.

2.Apply to the Court of Protection for authority to make a Statutory Will.

3.Do nothing if the property was not mentioned in the Will at all.

4.Keep the house and apply to the Local Authority for a Deferred Payment Agreement.

This resulted in Dawn being able to sell the property and the potential beneficiary under the Will also being protected – a win-win scenario.

This recent case highlights the importance of obtaining the correct legal advice and to always act in the best interests of the donor.

If you would like any guidance regarding Lasting Powers of Attorney, please contact Charles Fraser, a Senior Solicitor in our Private Client team.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances. Longmores Solicitors LLP are not regulated by the Financial Conduct Authority and are not authorized to provide any form of financial advice.