Most people think about a power of attorney when a parent’s memory starts to slip, and by then the choices are narrower than they would like. A power of attorney decides who can sign for you on the biggest asset you own, and the right paperwork put in place early takes a stressful situation off your family. This guide covers power of attorney and property in the UK: what an attorney can do with your home, what they cannot, and what happens if nothing is in place.
The short answer: a registered lasting power of attorney (LPA) for property and financial affairs lets your chosen attorney deal with your home, including selling it, but only within the rules of the Mental Capacity Act, and never in a way that puts their interests ahead of yours. Without one, no one can sign for you automatically once you lose the ability to make the decision yourself.
This post covers England and Wales. Scotland and Northern Ireland have their own systems, so follow the guidance for your nation.
The three things people confuse
Lasting power of attorney
A lasting power of attorney is a legal document in which you (the donor) appoint one or more people (attorneys) to make decisions for you. It comes in two types: property and financial affairs, and health and welfare. Only the first one deals with your house. The LPA must be registered with the Office of the Public Guardian before it can be used.
Ordinary power of attorney
An ordinary power of attorney is a simpler document, often used for a short time, for example while you are abroad. Crucially, it stops being valid if you lose mental capacity, which is exactly when most families need it. It is not a substitute for an LPA.
Enduring power of attorney
Enduring powers of attorney were replaced by LPAs in October 2007. An older one that was properly made before then can still be valid, and may be registered when needed.
What a property and financial LPA allows
With a registered property and financial LPA, an attorney can generally:
Sell or buy a property on your behalf, using a conveyancing solicitor in the usual way.
Remortgage or release equity, if that is in your best interests.
Pay bills and manage the household, including insurance, utilities and repairs.
Arrange for repairs and maintenance, and instruct and pay trades.
Rent the property out, if that is the right decision for you.
When an attorney sells a property, the buyer’s solicitor and the Land Registry will want to see the registered LPA or a certified copy. Expect extra checks on identity and capacity, and expect the process to take a little longer than a normal sale. Our guide to the house sale document pack lists what a seller normally needs to hand over, and an attorney needs exactly the same, plus the LPA itself.
What an attorney cannot do
An attorney is not given free rein. They must follow the Mental Capacity Act principles, act in your best interests and keep your money and property separate from their own. In practice that means:
No selling to themselves cheaply. A sale to an attorney or their family at an undervalue is a serious conflict of interest and is likely to be challenged.
Limited gifts. An attorney can only make gifts in the limited circumstances set out in the law, such as modest seasonal gifts, and not to reduce a care-fee bill.
No changing your will. An LPA does not allow an attorney to make or alter a will for you.
No overriding your instructions. An LPA can include preferences and restrictions, for example “do not sell the family home unless a care need requires it”.
No acting while you can decide. If you have capacity, your decision comes first, and an attorney should support you in making it.
If someone is worried that an attorney is misusing their powers, concerns can be raised with the Office of the Public Guardian.
Jointly owned homes
If you own your home with someone else, an attorney can only act for you, not for the co-owner. A sale needs both owners to agree, or the co-owner’s own attorney or a court order. How you hold the property matters too. Our explainer on joint tenants and tenants in common shows how ownership works and why it affects what happens to your share.
Choosing your attorneys
Pick people who are organised, honest and likely to outlive the need. Many people choose a spouse or an adult child, and name a replacement in case the first choice cannot act. If you name more than one attorney, decide whether they must act together on every decision, or may act independently. Acting together is safer for a large decision such as selling the house, while acting independently is more practical for day-to-day bills. Talk to your chosen people first, so that nobody is surprised by the role.
What happens if you lose capacity without an LPA
My view: an LPA is the single cheapest piece of protection most homeowners never get round to, and the cost of waiting is far larger than the cost of doing it. Without one, your family may have to apply to the Court of Protection to appoint a deputy. That process is slower and costlier than registering an LPA, and the deputy’s powers are set and supervised by the court. In the meantime, bills may go unpaid and a sale or remortgage can stall.
What to do in the next 30 minutes
Decide who you would trust as an attorney, and whether you want a replacement named as well.
Find out whether you already have an LPA or an old enduring power of attorney, and where it is kept.
Check that any LPA has been registered, and that copies are with the people who need them.
Look at how your property is owned, using your title register or deeds.
Book a call with a solicitor to discuss making or updating an LPA.
Whether you are setting one up now or helping a relative, the paperwork has to be easy to find when it is needed. Open your free Home+ document vault and store the LPA, the registration confirmation and your title documents together. If your deeds have gone missing, our guide to lost title deeds explains how to replace them.
FAQ
Can an attorney sell my house? Yes, if they hold a registered property and financial LPA and the sale is in your best interests. The buyer’s solicitor will want to see the LPA, and the process involves extra checks.
Do I need a solicitor to make a lasting power of attorney? You can complete it yourself using the official forms, but many people use a solicitor to avoid mistakes that can cause the registration to be rejected. Whichever route you choose, it must be signed and witnessed correctly.
When does a lasting power of attorney start to work? A property and financial LPA can usually be used once it is registered, if you say so in the document, or only when you lack capacity if you choose that. Discuss this choice carefully with a solicitor.
What if I only have an ordinary power of attorney? It stops being valid once you lose capacity, so it cannot be used for a sale after that point. If capacity has already gone, the route is a court-appointed deputy.
Can an LPA be cancelled? You can end an LPA while you have capacity, and you should tell your attorneys and the Office of the Public Guardian.
Does an LPA avoid inheritance tax or care fees? No. An LPA is about who makes decisions for you, not about the tax or care-fee position of your estate. Speak to a qualified adviser about those.
