Q: My uncle drew up an LPA and made me sole Attorney for both his Health and Welfare and his Property and Financial Affairs when he became ill two years ago. His wish was to remain in his home with carers visiting until his death. However, due to a shortage of carers in our area and his diminishing bank account, it is no longer possible to fulfil his wish and his house must be sold to fund his care in a home. I would very much like to buy my uncle’s house but am not sure whether this is possible because as his sole Attorney I would effectively be selling the house to myself! Please can you advise?
A: The key issue is that, as your Uncle’s Attorney, you must not in any way unduly benefit from his assets as it could be considered an abuse of your position. So, you could not for example purchase the property for less than the current market value. Further, you would need to demonstrate beyond question that by instructing the sale of your uncle’s property your action was entirely in his best interest.
Under the Mental Capacity Act 2005, as an Attorney you have a duty to act in the best interests of the Donor, i.e. your Uncle, and must therefore gain the best possible price for the sale of his property. It would consequently be advisable to obtain three written valuations of the property from local estate agents. As it is likely there will be a variance of price in the three valuations, it is generally deemed acceptable to take the middle one as the most realistic. You will also need to consult the Court of Protection for permission to purchase the property yourself, so seeking proper legal advice from a solicitor first would make sound sense.
This question has been answered by Lisa Jones, a Senior Solicitor with GHP Legal. If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients. Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194