Q&As

Where two attorneys under a Lasting Power of Attorney act for a surviving joint owner does this negate the need to appoint a second trustee to overreach a restriction on the title?

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Produced in partnership with Graham Stott of gunnercooke LLP
Published on: 01 April 2020
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Under section 9 of the Mental Capacity Act 2005 (MCA 2005), attorneys acting under a Lasting Power of Attorney (LPA) are provided with the Authority to make decisions on behalf of the donor in relation to their property and affairs, subject to any conditions or restrictions imposed by the donor in the LPA.

The MCA 2005 Code of practice at para 7.36 provides as one of the examples of decisions that the attorneys may make as including buying or selling property. Unless the LPA provides otherwise, attorneys may therefore sell the donor’s property without requiring the authority of the Court of Protection under the MCA 2005, s 18(1)(b), unless the property is the subject of a specific gift in the donor’s will (see Commentary: Chapter 13 The Scope of the Attorney's Authority Under a Lasting Power: Cretney and Lush on Lasting and Enduring Powers of Attorney).

Where

Graham Stott
Graham Stott

gunnercooke LLP

Graham Stott is a former solicitor (2001) and a Notary Public (2007), having worked in high street, City, regional and national firms of solicitors. Graham is also a former soldier and officer who has attended the Royal Military Academy Sandhurst.

Graham is experienced in the drafting of wills, codicils, trust documents and powers of attorney, disputed wills, contentious probate, intestacy, trust disputes, Inheritance Act claims, TOLATA, proprietary estoppel, equitable accounting, and Court of Protection.

Whilst a solicitor, Graham acted for HNW individuals, company directors, entrepreneurs, non-domiciled/non-resident individuals, PRs, trustees and elderly/vulnerable clients.

Graham also has experience working with wealth preservation teams from national firms of accountants, private banks and the private wealth divisions of high street banks in wealth preservation and succession planning. Graham has acted as an enduring/lasting attorney, a professional executor and a professional trustee.

Graham’s practice includes advisory, drafting, advocacy as well as the conduct of litigation.

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Jurisdiction(s):
United Kingdom
Related legal acts:
Key definition:
Lasting power of attorney definition
What does Lasting power of attorney mean?

When a person is unable to make their own decisions regarding their welfare, money or property, a person can be appointed to make decisions on their behalf pursuant to a legal document called a Lasting Power of Attorney.

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