A life interest in a house, not to be sold without the consent of the life tenant. Can this be given by an attorney/deputy if the life tenant is mentally incapable?
Simon Northcott
My understanding is that provided the consent is an administrative action only then it may validly be given by an attorney or deputy.
However, if it is effectively dispositive – e.g. the sale terminates the interest in possession – it must be authorised by an application to the Court of Protection.
Paul Saunders
According to the MCA code of practice 7.36, if a donor does not restrict decisions the attorney can make, the attorney will be able to decide on any or all of the person’s property and financial affairs. This might include:
• buying or selling property
so this seem to cover it (if the life interest is being deemed to be his property) provided it is in the best interests of the donor. A best interest determination and checklist will need to be made.
However caution may be advised - what are the terms of the life interest. Is the sale allowable only because a new property may be purchased for the life tenant (eg downsizing or a flat in a warden controlled environment).
Also, in addition to the LP1F is there an LP1H as I would suspect a health and welfare LPA may be required to make decisions about where the life tenant subsequently lives.
MCA code of practice 7.21 states "Personal welfare LPAs might include decisions about:
• where the donor should live and who they should live with
amongst other things
Andre Davidson
Finantium