Does an LPA attorney have authority to sign a Deed of Release?

Trusts Discussion
1

I am dealing with a will in which the testator granted his wife a right of occupation in his share of the family home which was owned by him and his wife as tenants in common in equal shares. The will defined the “Residence Period” as the period during which the widow “has a beneficial share in the Property and wishes to occupy it”. The widow is still alive but lost capacity quite a long time ago and has permanently resided in a nursing home for several years.

Before losing capacity, the widow executed a Lasting Power of Attorney for property and finances in favour of her three children, who are also the trustees of the testator’s will trust. The LPA is registered with the OPG and the widow’s children are managing her finances on her behalf.

My question is: do the attorneys under a financial LPA have authority to sign a Deed of Release of the widow’s right of occupation in the property? Or should we be seeking an order from the Court of Protection determining that?

2

No, I don’t think they have authority as a “release” would likely be contrary to s.12(1) MCA “dispose of the donor’s property by making gifts except…” but I think the better solution is for them to simply confirm in writing that the widow can no longer occupy the property and so will not be able to return.

That is simply a confirmation of the factual position. To my mind, the IIP would have terminated automatically as soon as it became clear that she would not be able to return to occupy the property. The “wish to occupy” must surely be a wish that is capable of fulfilment and so they could confirm (albeit for their own purposes) that in their view it had become clear that she would no longer be able to occupy the property from [date].

While I can appreciate the desire for a formal release for confirmation, I don’t think it would be needed even if the widow could provide it herself.