Some common questions on the extent of an Attorney’s powers are considered below:
Can Attorneys sell the Donor’s property?
All actions taken on behalf of the Donor must be in the Donor’s best interests. If the Attorney believes that selling the property is in the Donor’s best interests and the Donor is the sole owner of the property and the EPA allows it, then the Attorney may decide to sell the property.
Attorneys do not need approval from the Court of Protection or the OPG to sell the Donor’s property. However, they must apply to the Court for permission if for any reason the sale is below market value or the Attorney or a family member wants to buy the property. If the Attorneys do not seek the Court’s approval under these circumstances, then the sale may be challenged.
If the Donor has a registered Health and Welfare Lasting Power of Attorney, the Attorney may need to discuss matters about the sale of the Donor’s property with any Attorneys appointed to make decisions about where the Donor lives.
Can Attorneys make gifts of the Donor’s property?
Attorneys have limited powers to make gifts of the Donor’s property, whether this is to themselves or to others. Seasonal gifts can be made, for example at Christmas or to mark other religious festivals, or on occasions such as anniversaries, births or marriages/civil partnerships. However, these must be to people who are related to, or connected with, the Donor.
Attorneys can also donate to any charity the Donor supported or might have been expected to support. The value of any gift must be reasonable and proportionate in relation to the value of the Donor’s estate.
If larger gifts of money or property are to be made, for example, as part of planning for inheritance tax, the Attorneys must apply to the Court of Protection.
The Court may order that any gifts which do not meet these criteria are to be paid back to the Donor.
Can the Attorney decide where the Donor should live?
An EPA does not give Attorneys the legal right to decide where the Donor should live. However, a Health and Welfare Lasting Power of Attorney can grant Attorneys the right to determine the Donor’s living arrangements.