Power Of Attorney Trustee

[tearinghair]

I'm a bit unsure about asking this question, as it may look as though I'm asking for a free legal consultation. Actually I'm just trying to sort out something in my mind, but I will completely understand if no-one feels they should answer it.

I own our current property jointly with my husband. I have Power of Attorney for him, as he has vascular dementia though he does understand this particular situation perfectly well. He is in a care home waiting for a further assessment. I'm in the process of selling our house and downsizing to a small flat; it may be possible for him to come back to live with me when the sale and purchase have gone through, though that's by no means certain.

I understand that as we are currently joint owners, this next purchase must also be bought in our two names. I assumed that with PoA I would be able to sign for myself and for him, but that does not appear to be the case. Why not? I've been trying to find a second trustee, but our son lives in USA and I've been told there would be tax implications - again, why?- and our daughter has no mental capacity following emergency brain surgery. We both come from small families, and there really no-one else I can ask. Who should I turn to? And is it really necessary?

I have been told what the situation is, but no-one has explained it to me. If the PoA doesn't function, where is the P for the A?

I'd be grateful for any help .

[barry1010]

You are understanding the situation correctly and it does cause difficulties for couples in your situation.
Your husband could appoint a solicitor to act as his attorney solely for the purpose of buying and selling property if he still has capacity to do so.

[Tuvok]

Could you buy the property in your name only? eg. With your money, not the proceeds of the house sale?

[barry1010]

You might find this helpful https://www.curtisparkinson.com/2021/04/powers-of-attorney-and-selling-joint-property/

[Rosetta]

will his share of the profits from the sale of the house be part of a financial assessment for his contribution for care home fees? If I were you I would get legal advice to this and any other considerations for both you and your husband

[barry1010]

Is the property owned as joint tenants or tenants in common?

[Barmaid]

It is not that that LPA does not function. It is the fact that you are the legal owner of the property beneficially and also acting as LPA for your husband. When property is owned jointly, the sellers actually sell as Trustees. You cannot be both Trustees at once.

A simple solution is to appoint a legal professional as the second Trustee, simply for the sale of the property. This will satisfy the purchasers (2 trustees are always needed in co-owned property). The new property can still be purchased in your name and the name of your husband.

There are ordinarily no tax implications - it is a straightforward sale and purchase of the principle private residence. Although clearly I cannot comment on your personal circumstances.