How power of attorney documents should be made, where a couple jointly own the house
This is unfortunately an often overlooked technical point which can cause inconvenience to the clients should one of the couple lose mental capacity and the other wishes to then sell the family home and purchase another. The reasoning behind this is that – let’s say for a typical couple ofHusband & Wife each acting as sole attorney in each other’s Power of Attorney – Husband loses capacity. In order for Wife to then sell the jointly owned house she is not only representing her own interests but also that of Husband. This is considered to be a conflict of interest.
The appointment of a second attorney – for example one of the couple’s children – will then allowWife to represent her own interest and the child to represent the interests of the incapacitatedHusband. Of course, it does require that the Powers of Attorney have been registered and as theOffice of the Public Guardian or oversight body is not in a position to decide the relative merits in each case, there will be no challenge to a sole attorney being appointed at registration.
The only solution to this problem is usually for a court – appointed deputy to act in Husband’sinterest for the purpose of selling the house. This can be a costly solution to resolve this problem.
As a Will writer & Estate planning from Bexhill, East Sussex I'll be happy to offer you a FREE CONSULTATION NO OBLIGATION, in your own home at a time convenient to you, if you have any questions regarding Lasting Power of Attorney, Property & Financial or Health & Welfare. Covering Hastings, Battle, Rye and all Sussex and Kent.
This message was added on Tuesday 1st April 2014
