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 11 . . .
Buying and Selling Leases
Bulk applications affecting one or more Land Registry Office
Types of Power of Attorney
Trustee Act powers
Section 25 Trustee Act 1925 allows a trustee to grant a Power of Attorney delegating their functions as a trustee to the Attorney. This is very useful for Conveyancing Solicitors and Property Lawyers.
Section 25 provides a short form of power by which a single donor can delegate trustee functions under a single trust to a single donee. Trustees can use other forms. The short form would not, for example, be appropriate where the donor wishes to delegate functions under several trusts to one Attorney or wishes to limit the range of functions to be delegated. Conveyancing Solicitors and Property Lawyers are often asked to prepare a trustee Power of Attorney.
A Trustee Act 1925 power can be granted only for a period of up to 12 months. The period starts on the date of the power unless is specifies a different date.
A Trustee Act 1925 power can always be used, while in force, to execute dispositions of Property on behalf of a donor who is a joint proprietor, whether or not the donor has a beneficial interest in the Property. It is possible to grant such a power to an Attorney who is also the only other trustee under the trust. However, where there are only two trustees, it will always be sensible to appoint a third party such as a Conveyancing Solicitor or Property Lawyer. This is because a trustee who is also acting as Attorney for the only other co-trustee will not be able to give a valid receipt for capital money.
Power given by all the trustees to a beneficiary under section 9 Trusts of Land and Appointment of Trustees Act 1996
All the trustees of a trust of Property (Land) can together appoint a beneficiary or beneficiaries to exercise their functions in relation to the Property (Land). but the Attorney cannot give a receipt for capital money, so the trustees would, in any event, need to join in any disposition of the Property (Land) where such a receipt was required. This type of power is, therefore, likely to be encountered rarely in the context of dispositions of registered Property and by Conveyancing Solicitors and Property Lawyers. it could only be used effectively when no capital money is passing, for example on the grant of a rack rent Lease. Where this form of power is used for a registered disposition, the Registrar may require under rule 63 Land Registration Rules 2003 evidence that the person(s) dealing with the Attorney:
- acted in good faith; and
- had no knowledge at the time of completion of the transaction that the Attorney was not a person to whom the functions of the trustees in relation to the Property to which the application relates could be delegated under section 9 Trusts of Land and Appointment of Trustees Act.
On the rare occasions when the Land Registry requires evidence, it must be supplied in form 3, being either a statutory declaration or statement of truth by the person dealing with the Attorney or a certificate given by the person's Conveyancing Solicitor and Property Lawyer. If the Land Registry also require evidence of non-revocation (for eg powers more than 12 months old) form 2 should be used.
Lasting Powers
Lasting Powers of Attorney have replaced enduring powers as the principal way of choosing a decision-maker to act in the event of loss of capacity. In addition to Property and affairs, donors will be able to appoint an Attorney to make decisions about their personal welfare for a time when they lack capacity to make such decisions themselves.
Lasting powers relating to decisions about Property and financial affairs can be used both before and after the donor loses capacity, according to his or her wishes. A lasting power must in all circumstances be registered with the Office of the Public Guardian before it can be used. Notice must first be served by the person applying for registration of the power. When acting under a lasting power, Attorneys must apply the principles under the Mental Capacity Act 2005 Code of Practice and, where appropriate, must act in the best interests of the person lacking capacity when making a particular decision.
The donor of a lasting power relating to Property and affairs must be a person aged 18 or over and have capacity to execute a lasting power. The donee must be a person aged 18 or over who is not bankrupt or a trust corporation. Joint Attorneys may be appointed to act jointly, jointly and severally, or jointly in respect of some matters and jointly and severally in respect of others. A lasting power may nominate a replacement donee to act in certain circumstances that terminate the original donee's appointment (section 10(8) Mental Capacity Act 2005), but a donee cannot appoint a replacement donee (section 10(8)(a)).
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 13 (Manchester Conveyancing Solicitors Property Lawyers for Buying and Selling Leases 13)
Please telephone Paul on 0161 866 8999 if you require any further information.
Ford Banks Irwin Solicitors
50 Stothard Road
Stretford
Manchester
M32 9HB
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