Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester for Buying / Selling Leases and Business Premises
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
continued from page 10 . . .
Buying and Selling Leases
Bulk applications affecting one or more Land Registry Office
Types of Power of Attorney
Other general and special powers
A person wishing to appoint an Attorney does not have to use the form set out in the Powers of Attorney Act 1971. The only strict requirements is that the donor must execute the power as a deed. The donor may use any form of wording, giving the Attorney either general authority to act or limited powers, for example in connection with a particular transaction or dealings with specified Property. A power that does not follow any of the statutory forms may be used on behalf of a donor who is a joint proprietor only if:
- it is dated after 29 February 2000
- the donor has a beneficial interest in the Property, and
- there is no indication in the power that the donor did not intend the Attorney to exercise trustee functions
Unless it is a security power the donor may revoke such a power and the death, bankruptcy or mental incapacity of the donor will automatically revoke it.
Security Powers
A Security Power is a Power of Attorney that is expressed to be irrevocable and is given to secure:
- a proprietary interest of the Attorney, or
- the performance of an obligation owed to the Attorney.
While the donee has the interest, or until the obligation is discharged, the donor can only revoke the power with the Attorney's consent and the death, bankruptcy or mental incapacity of the donor does not revoke it.
Enduring Powers
An enduring Power of Attorney is one made by an individual under the Enduring Powers of Attorney Act 1985. This Act has been repealed and provisions governing enduring powers are now contained in schedule 4 Mental Capacity Act 2005. New enduring Powers of Attorney cannot be created after 30 September 2007 although those created before 1 October 2007 will continue to have effect. An enduring power must be in the form prescribed by the Enduring Powers of Attorney (Prescribed Forms) Regulations 1986, 1987, 1990 or 2005 or the Enduring Powers of Attorney (Welsh Language Prescribed Form) Regulations 2000 as appropriate, depending on when the power was executed and in which language. The power must be executed in the prescribed manner by the donor and the Attorney and incorporate at the time of execution the prescribed explanatory information. A Power of Attorney that gives the Attorney a right to appoint a substitute or successor cannot be an enduring power. (see schedule 4 paragraph 2(6) Mental Capacity Act 2005).
An enduring power is not revoked by the donor's mental incapacity. If the Attorney has reason to believe that the donor lacks or is beginning to lack capacity they must apply to register the power with the Public Guardian who, in some circumstances, can only register the power in accordance with the direction of the Court of Protection. After the power is registered it may only be revoked by the donor with the confirmation of the Court of Protection, or be the death of the donor, the bankruptcy of the donor or donee, or by the Court of Protection. Enduring powers dated after 29 February 2000 and earlier powers used in transactions dated after 28 February 2000 made by one of the joint proprietors may only be used if:
- the donor has a beneficial interest in the Property (For Joint proprietors - evidence that the donor of a power had a beneficial interest), and
- there is no indication in the power that the donor did not intend the Attorney to exercise trustee functions.
OR
For enduring powers dated before 1 March 2000 if:
- the power is registered with the Court of Protection following an application made to the Court before 1 March 2001
OR
- an application made to the Court for registration of the power before 1 March 2001 has not been finally refused.
An Attorney under an enduring power can made gifts and confer benefits on behalf of the donor only in very limited circumstances - see schedule 4, paragraphs 3(2) and 3(3) Mental Capacity Act 2005. Land Registry will usually refuse to register a transfer involving a gift or benefit that is executed under an enduring power unless the Court has authorised the transfer under schedule 4 paragraph 16(2)(e) Mental Capacity Act 2005.
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 12 (Manchester Conveyancing Solicitors Property Lawyers for Buying and Selling Leases 12)
Please telephone Paul on 0161 866 8999 if you require any further information.
Ford Banks Irwin Solicitors
50 Stothard Road
Stretford
Manchester
M32 9HB
Tel: 0161 866 8999
Fax: 0161 866 8333
E-mail: info@FordBanksIrwinSolicitors.co.uk
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