Manchester Conveyancing Solicitors | Ford Banks Irwin Solicitors - The Property Lawyers in Manchester on Transfer of Deeds and Names on Title Deeds of any House / Apartment / Flat.
Please note: Not to be used or relied upon without legal advice. These notes are for illustration purposes ONLY
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Transfer of Deeds or Names on Title Deeds
Execution under a Power of Attorney
Enduring Powers of Attorney
The general rule is that a Power of Attorney can be granted for any indefinite period but will automatically be revoked if the donor lacks capacity. However Enduring Powers of Attorney will continue to be effective even after the donor lacks capacity, provided the required notices have been served on the appropriate relatives and the power has been registered with the Public Guardian as required by the Mental Capacity Act 2005.
If the Public Guardian does not register the Power of Attorney(s) cannot use it to act on behalf of the donor if they lack capacity.
The Court of Protection may, on the application of an Attorney, direct the Public Guardian to register the Power of Attorney even though notice has not been given as required under the MDA 2005.
An Enduring Power should have first been executed as a Deed by the donor and then by the Attorney. If two or more Attorneys are appointed jointly, they must all execute the Power. If they are appointed jointly and severally, only one need execute it. However only those joint and several Attorneys who have executed the power can act once the donor lacks capacity.
If an Enduring Power of Attorney has been registered at the Court of Protection or by the Public Guardian and any order or direction has been made by the Court under schedule 4, paragraph 16 MCA 2005 with respect to the power or to the donor or to the donee, the Order of direction or an official copy or certified copy of the Order or direction, should be sent to Land Registry by the Conveyancing Solicitors and Property Lawyers with the Deed and copy power.
Lasting Powers of Attorney
Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005. They have replaced Enduring Powers as the primary 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.
Part 1 schedule 1 LPA 2007 prescribes the form which must be used for a Property and affairs lasting Power of Attorney.
A Lasting Power of Attorney must be executed in accordance with regulation 9 LPA 2007. The donor must sign first in the presence of a witness; the person or persons giving the certificate(s) required by paragraph 2(1)(e) of schedule 1 MCA 2005 must sign next; and the donee(s) must sign next in the presence of a witness. The donor must not witness any signature required for the power. Similarly, a donee may not witness any signature required for the power other than that of another donee. A person witnessing a signature must sign the instrument and give their full name and address. Signing includes a signature created by making a mark on the Deed in the appropriate place.
A Lasting Power may only be used once it has been registered with the Office of Public Guardian. A person about to apply for registration must first serve notice in the form set out in schedule 2 LPA 2007.
If a Lasting Power of Attorney has been registered with the Office of the Public Guardian and any Order or direction has been made by the Court under sections 22 or 23 MCA 2005 with respect to the power or to the donor or donee, the Order or direction, or an official or certified copy of it, should be sent to Land Registry by the Conveyancing Solicitors and Property Lawyers with the original or copy power.
Powers of Attorney more than a year old
A Power of Attorney may be revoked either expressly by the donor or impliedly by the death, bankruptcy, mental incapacity of the donor (except in the case of an Enduring power or Lasting power) or where the donor is a body corporate, by its winding up or dissolution.
Where a power has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them will be valid (section 5(2) Powers of Attorney Act 1971). Statutory protection is also given in certain circumstances to a Purchaser where their interest depends upon the validity of a transaction made between the Attorney and another person. It is conclusively presumed that the latter did not at the material time know of the revocation of the power if the transaction took place within 12 months of the date on which the power came into operation of if the person dealing with the Attorney, such as a Buyer from the Attorney swears a statutory declaration within three months of completion of the purchase that they did not at the material time know that the power had been revoked. Similar protection is afforded by the MCA in relation to Enduring Powers of Attorney, where the power was invalid but has been registered under that Act or the EPAA 1985 (schedule 4 para 18(4) MCA).
(All italics in this page are Crown Copyright and reproduced here for your information with permission from HM Land Registry)
. . . continued on page 22 (Manchester Conveyancing Solicitors Property Lawyers on Transfer of Deeds or names on Deeds 22)
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