Client owns a property with her Mother under Tenancy in Common and both own equal shares. She is her Mothers sole appointed Attorney for property and financial affairs and there are no restrictions. Document also confirms she can act for her Mother even if she has or does not have Mental Capacity.
Mother has been in a Care Home for 3 years and will be residing there indefinitely due to amount of care she requires. She has mental capacity but due to being frail would like her daughter (the client) to make all arrangements.
Client lives alone in the property and due to it’s size and lack of funds is falling into disrepair.
Client urgently needs to sell the property and move somewhere more manageable. The sale proceeds will be split 50/50 with each receiving their share separately.
As the client is her Mother’s Attorney, does client just appoint a Trustee to sign on behalf of her Mother? A friend of her Mother for example?
Thanks in advance, just wanted some clarity.
Lucy Jones
I do not believe that the appointment of another trustee (or a replacement trustee for the mother) is the exercise of a trustee function for the purposes of s.1 Trustee Delegation Act 1999. If that is the case, then the daughter cannot appoint another to sign on behalf of her mother.
Either the mother will have to sign the sale contract and transfer, or she will need to join in a deed of appointment and retirement of trustee (DART) leaving it to the daughter and new trustee to deal with the sale. It should be noted, though, that if a new trustee is appointed the trust of land under which the property is held would need to be registered under TRS as it then falls outside of the exemptions.
It would appear simpler for the daughter to negotiate the sale and for the mother just to sign the documentation (assuming that she is happy with it)
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I must confess that I may be missing the point on this query.
Why cannot your client simply sign as attorney for her Mum?
If you, or the buyer’s conveyancer, are concerned about the “double signature” aspect, why cannot your client appoint an attorney [perhaps you] to sign for her?
The client cannot sign for herself and her Mother, even if her daughter is her Attorney, not allowed. So need to appoint a new Trustee to act for her Mother.
Hi Paul
I believe the Client as Attorney CAN appoint a replacement Trustee for her Mother.
There is provision under s.40 of the Trustee Act 1925 to create a deed of appointment or retirement that automatically vests the trust property in a new trustee. Creating a deed of appointment vesting the property in the new and continuing trustee jointly, will be sufficient to allow the property transfer to proceed.
This i feel is the correct approach but please reply with any concerns.
Lucy
You do not say why you believe this is not allowed, and as stated previously I am unsure if I am missing something so would welcome a clarification/explanation from yourself or anyone else on this forum.
However, I did not propose that the client should sign for herself and her Mother as you state. My view is that your client can sign [as attorney] for her Mother, and have someone else sign [as attorney] for herself, thus avoiding signing twice.
This is something I have done successfully albeit some years ago, hence my concern that there may have been a change in the law of which I am unaware.
I hesitate to disagree with Paul, and maybe I have misunderstood the legislation, but isn’t what Lucy needs to do authorised by a combination of s.36(6) (6A) and (6B) Trustee Act 1925 ?
If Lucy adopts s.36(6) TA 1925, et seq, the client will need to exercise that power to appoint an additional trustee to act with her and her mother, with the client signing for herself and her mother and the additional trustee signing for themselves (thus satisfying the 2 signatures requirement).
The power under s.36(6) is subject to the power of attorney, whether EPA or LPA, being registered with the OPG. If not registered, then alternative strategies will need to be considered.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
This is definitely possible. To satisfy the requirements of s1(1) Trustee Delegation Act, the TR1 must confirm that the Donor had a beneficial interest in the property (see Land Registry guide 9 for suggested wording). Attorney can then appoint a co-trustee under s.36(6A) Trustee Act also in the TR1.