Lasting Power of Attorney

My father in law and his two sons are seeking to sell the family home, which they hold as tenants in common. His two sons are attorneys under a registered LPA for property and financial affairs, on a joint and several basis. 

My father in law has dementia and is in a care home. 

The conveyancers are asking for evidence of capacity, which is proving complex. They argue that this is a requirement of the Land Registry. My understanding is that the attorney(s) can sign on my father in law’s behalf, irrespective of whether he has capacity (there is no carve out in the LPA restricting the attorneys to act only if he has lost capacity). 

Am I right in thinking that the conveyancers’ request is incorrect, and that the attorney(s) can sign the relevant transfer documents?

Just to clarify, the two attorneys do not reside at the house and will have no interest in it after the sale. 

Peter - Lasting Powers of Attorney are specific to being used where the donor's mental capacity has been lost. Section 2.7 of our Practice Guide 9 provides extensive guidance on how and when a power of attorney might be used for registration purposes and our guidance on what's required
 

Thank you for your response. However your statement that LPAs are specific to being used when the donor’s mental capacity has been lost is inconsistent with the wording of Section 2.7, which I repeat below:

“Lasting powers relating to decisions about property and financial affairs can be used both before and after the donor loses capacity, according to their wishes. If the donor has stated in the lasting power of attorney that the attorney can only act after the donor has lost capacity, then on any disposition by the attorney we require written confirmation from a medical doctor or a mental health specialist practitioner that the donor has lost capacity.”

In this particular case the LPA does not require the donor to have lost capacity before the attorney can act. So I don’t see the relevance of the conveyancers asking for an assessment of capacity - surely the attorneys can act irrespective of whether their father has capacity?

The practical problem is the difficulty of getting an assessment of capacity - the GP refuses to do it and has suggested that we appoint a private psychiatrist. We don’t want to this if it is unnecessary, as appears to be the case. 

Peter - LPAs are the primary way of choosing a way for someone to act where a donor's mental capacity has been lost. 
Please rely on our PG 9 guidance to aid your discussions with your conveyancer. as it sets out our guidance and both you and the conveyancer will be aware of how the LPA has been created/worded as appropriate.
Hopefully when you ask the Q of your conveyancer they can rely on the PG 9 guidance and respond. It's not for us to tell your conveyancer what they must do in such cases but our guidance is written with them in mind
 

The issue was raised by our conveyancer. They have stated that the LR will not accept the attorney signing without the donor being determined not to have capacity. We have pointed out that this in conflict with PG9 and the accompanying summary notes.

The relevant LPA does not require the donor to have lost capacity before the attorney can act. In these circumstances surely your advice could be more explicit. You appear to be washing your hands of things and passing the buck to the conveyancer. 

See also an extract from the Court of Protection guidance:

“Attorneys appointed under Enduring and
Lasting Powers of Attorney
In cases where an attorney is acting under a
registered power of attorney they have acquired
trustee functions in respect of trusts of land under
the Trustee Delegation Act 1999. This means that
an attorney can exercise the Donor’s trustee powers
provided that
I. the donor has a beneficial interest in the trust
property at the time that the function is exercised
II. there is no indication that the donor did not want
the attorney to exercise his/her trustee functions.
Practically this means that an attorney acting under a
registered power can
I. act with any continuing trustees in the sale of a
property
II. where the attorney is the continuing trustee, or the
donor is the sole surviving trustee, appoint a new
trustee to act with him/her.”

This seems quite explicit, and I can’t understand why you aren‘t able to confirm that the attorney can sign unless the LPA specifically excludes it. 

Peter - there's no buck being passed here as our PG 9 guidance is quite clear and it is written for conveyancers to help them with regards how to deal with a power of attorney when submitting an application to register a transaction.
Whether the LPA is acceptable for the actual transaction and does as you state, which it can do as the guide and you point out, is a decision for the conveyancer, not us.
We will consider the application and supporting evidence as and when submitted and can't do any more than refer you and the conveyancer to PG 9.
If you believe the LPA gives you the required legal authority to complete the transaction then that is very much a matter for you and the conveyancer to resolve.
The Court of P guidance is to help people deal with powers of attorney, not land registration matters. The guidance on what we can accept for registration purposes is explained in our own PG 9 
I assume the conveyancer is acting on your behalf and if so then you may wish to ask them to review their current position in light of what PG 9 offers

My apologies for using the term ‘passing the buck’.  It is all rather frustrating.

I agree with you that the guidance in PG9 is clear - my concern is that the application of the rules by LR is not always consistent with the guidance, as evidenced by innumerable threads on the web, such as https://forum.alzheimers.org.uk/threads/it-appears-lpa-is-no-longer-enough-to-satisfy-the-land-registry.111992/#post-1580019

Because of this uncertainty I can see why some conveyancers are adopting a very cautious approach, requiring sellers to provide an assessment of capacity, which can be distressing to the vulnerable individual, not to mention costing c£500.

Although I imagine nothing can be done in my case, it seems to me that the LR should clarify its guidance such that when the LPA is straightforward (ie not restricted to the donor having lost capacity), there should be no need to provide evidence of capacity (or lack thereof) when submitting the transfer documents.

Until such a time as this guidance is provided I can see many conveyancers will adopt the easy way out of asking their clients for such evidence.  That’s why I think your suggestion of challenging the conveyancer will not work (we have tried!), as they will just quote examples of where the LR has kicked up a fuss.

But I thank you for your help and your speedy responses.  Hopefully you can escalate this so that such issues do not arise in the future.

Peter - no apology required as my use of the word 'specific' started the ball rolling perhaps re your frustrations.
Para 2 of section 2.7 does make it clear so I'm unsure as to what clarification is required. But as posted the decision as to what a conveyancer can and will accept is very much their choice - we can only offer our guidance in the way we do as we do not manage/provide powers of attorney. All we can do is offer guidance as to what we would expect to receive in support of an application which is relying on such a power.
GOV.UK offers extensive guidance on LPAs including this section which again makes the point re using an LPA where the donor still has mental capacity. Very much something for your conveyancer to clarify as to why they require 'more' here and whilst they argue it is a LR requirement our PG 9 explains otherwise. But as your Father is in care and has dementia they are perhaps arguing the point on more than just LR requirements
To that end we are not here to tell a conveyancer that they are wrong for example before they have actually submitted an application. If we've 'kicked up a fuss' in other cases hopefully we had good reason to and there can often be other factors/complexities or indeed a lack of, or even more, information provided that can cause us to do so. But that's only after they've made a decision as to what they can accept to complete the transaction. We only get a chance to do that after they have then submitted their application, hence why we can only offer up front guidance as we do 
Any escalation would be made within the conveyancer's firm to seek a second opinion, clarification or perhaps even a complaint. There's nothing more we can add to the guidance already provided - how a conveyancer then relies on and uses that in light of their specific transaction is very much a matter for them. 
I hope you are able to find a way forward

I’d like to thank you, Adam, for your cooperation on this matter.  Based on your last response I went back to our conveyancers, who had hitherto been quite intransigent, and they agreed to put it to their legal head.  He immediately accepted our argument, thereby avoiding further distress to my father-in-law, not to mention the expense of getting a private assessment of capacity.

I hope your advice and help on this subject will help others who are faced with a similar response from their own conveyancers.

Kind regards, and thanks again.

Peter - thank you for sharing and I am sorry if my original response caused you frustration and more. Pleased to read that you managed to move matters forward and as you say always handy to share such outcomes for others to benefit from if read.