Selling Property Under a Lasting Power of Attorney: Legal and Ethical Guidance for Estate Agents

When it comes to selling a property where the legal owner has a Lasting Power of Attorney (LPA) in place, the process requires more than just legal compliance; it demands sensitivity, transparency, and an unwavering commitment to act in the donor’s best interests.

At Elite International Real Estate, we’ve handled numerous sales where an attorney is acting on behalf of someone with diminished mental capacity, and we understand the unique responsibilities involved.

What Is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document registered with the Office of the Public Guardian (OPG) that gives one or more people (known as attorneys) the legal authority to make decisions on behalf of another person (the donor) if they lose mental capacity. There are two types:

Health and Welfare LPA
Property and Financial Affairs LPA – this is the one relevant when selling property.

The LPA must be registered with the OPG and activated, particularly in cases where the donor no longer has the mental capacity to make financial decisions themselves.

Key Legal Requirements When Selling a Property Under LPA

Registered LPA Confirmation

As an estate agent, you must request and verify a certified copy of the Property and Financial Affairs LPA.
Ensure it has been properly registered with the OPG. An unregistered or incorrectly executed LPA is invalid and cannot be used for property transactions.

Capacity Must Be Considered

If the donor still has capacity, they can act themselves, and the attorney may only assist.

If the donor lacks capacity, the attorney has full authority but must act strictly within the scope of the LPA and in the best interests of the donor, as outlined in the Mental Capacity Act 2005.

Acting in the Best Interests of the Donor

Attorneys are legally bound to act in the donor’s best financial interests, not their own or anyone else's.

The property must not be sold below market value unless there is a clear and legally defensible reason.

If the sale could result in a conflict of interest (e.g., selling to a family member or the attorney themselves), approval must be sought from the Court of Protection.

No Gifts or Transfers Without Authority

Attorneys cannot gift property or transfer ownership without Court of Protection authorisation, even to a spouse or child.

Breaching this rule is a serious legal offence and can result in removal as an attorney or criminal charges.

Transparent Communication

If the donor is still capable of interacting with others—even with limited understanding—it’s important to explain your role carefully and avoid misleading the public.

In cases where the donor is known in the community and is expressing confusion or concern about the sale (as can happen in cases of dementia), it’s appropriate to encourage the family to obtain a professional mental capacity assessment and to provide a short, standard explanation to concerned third parties (e.g., neighbours) without breaching the donor’s confidentiality.

Best Practice for Estate Agents

Verify the authority of the attorney: Ask to see the registered LPA and keep a certified copy on file.

Record all communications and decisions in writing to protect yourself and your agency from liability.

Confirm capacity where uncertain: If there is doubt about the donor’s mental state, the attorney should arrange a mental capacity assessment by a medical professional or social worker.

Liaise with solicitors: Ensure the conveyancing solicitor is aware of the LPA and confirms its validity before proceeding with the sale.

Avoid conflicts of interest: You have a duty to both the attorney and the donor. If you believe there’s a conflict or improper conduct, you may have a legal obligation to raise your concerns with the Office of the Public Guardian.

Responding to Community Concerns

In situations where the donor is still visible in the community and claiming their property has been sold without consent, it’s essential to prepare a polite and legally sound response. For example:

"The property is being sold under a valid legal arrangement registered with the Office of the Public Guardian. All decisions are being made in the best interest of the legal owner, in full compliance with UK law."

If there is ongoing concern, you may advise the attorney to provide a general written statement or, where needed, involve social services to support the donor’s welfare.

Summary

Selling a property under a Lasting Power of Attorney involves strict legal duties, safeguarding the rights of vulnerable individuals, and ensuring all actions are transparent and justifiable. As agents, we are not only sales facilitators, we are duty-bound professionals entrusted to uphold the law and protect the dignity of those we serve.

If you are involved in such a sale and need advice or help managing the process, contact our team at Elite International Real Estate. We’re here to guide you with compassion, compliance, and expertise.