Consent to property sale by Attorney

I act for A and B (A’s Partner) in their capacity as trustees of a Will. The trust assets are a 50% share of a property owned jointly with C and some investments. C has now lost capacity and moved into a care home. C’s needs her 50% share of the equity in the property to pay care fees. A is also C’s attorney under a registered EPA. A buyer has been found for the property.

The Will states:

“I give my [50%] share in 1 High Street or such other property which shall be my principal dwelling at the time of my death to my Trustees UPON TRUST to sell the same but to allow my wife A to occupy the same rent free but she being responsible for all outgoings both of an income and capital nature (including the upkeep of insurance in some office of repute) during the remainder of her lifetime or until she shall co-habit or remarry or until she shall give written consent to my Trustees that she no longer wishes to reside in the property and upon the first event so to happen then UPON TRUST to hold such share and interest in trust for A absolutely”.

It seems therefore that as C has not died, co-habited or remarried, she must give written consent to the sale of the property. However, as she no longer has capacity is A (as C’s attorney) able to give this consent on C’s behalf to A and B in their capacity as trustees? I am concerned that A is ‘wearing too many hats’.

As an aside, the Will separately created a life interest of the residuary estate from which C receives the income from the trust investments and A will receive the capital on C’s death. The Will is completely clear in this respect.

Anna Howat
Chattertons Solicitors

I don’t believe there are any conflict of interest issues as such. The consent would be given unilaterally as an attorney for the beneficiary so A need not be concerned about her fiduciary duties as a trustee (at least not in this scenario) and I am not aware of any particular provisions/duties concerning conflicts of interest in relation to EPA’s. The attorney’s principle duty is to act in the patient’s best interests, which appear to be fairly clear given she is no longer living in the property.

The only real risk I can see is contravening the provisions restricting the making of gifts by an attorney. However, if the patient is no longer living in the property, unlikely to return and will benefit from income from the trust half share (once sold), it is arguable both that (a) she is not giving an asset away and/or (b) it is not a gift as she will benefit from the income once the property is sold. I think this latter point is the better one given she could be said to be disposing of a right to occupy, however worthless. She is simply exchanging the right to occupy for a right to income in the proceeds and there is no loss to her estate.

Andrew Goodman
Osborne Clarke LLP

Could I ask how A & B became entitled to a half share of the property?

If this was previously owned by the deceased testator [should he be called
D?] as tenants in common with C, then surely the legal [as opposed to
beneficial] estate would have passed to C [as surviving trustee of land] on
the death of D.

In this case, the sale would be dealt with by C [or her attorney/deputy]
and any co-trustee she/they may appoint.

A & B as trustees of D’s will may only be a beneficiary of the trust of
land, so at least some of the conditions set out in D’s will are probably
ineffective [competent will draftsmen will surely have considered this
point for many years?].

This is, of course, subject to any special considerations under ToLaTA, as
well as any specific appointments/provisions in this particular case, which
may not have been mentioned in the original post.

Kevin Mullen