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The Attorney Forms You Need, Without The Hassle...

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The Complete Lasting Power of Attorney Service

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Joint Bank Accounts: Caution!

Some people assume that sharing a joint bank account with their spouse or partner affords them protection in the event of their spouse or partner losing mental capacity - but it doesn't!!

In fact, should incapacity occur for one, then sharing a joint account becomes the worst arrangement for a couple - as the bank will freeze the account!

If the incapacitated account holder hadn't previously raised a Property LPA then the bank will require an Order from the Court of Protection to reactivate the account, which could take up to 6 months and would entail an expensive 'Deputyship' Application.

LPA - 'Property and Financial Affairs'

The Lasting Power of Attorney for Property and Financial Affairs gives appointed attorneys the authority to make decisions about the finances and property of the 'donor' - the person giving the power - when the donor is unable to make these decisions for themself.

An attorney will be able to act in place of the donor across the donor's entire financial affairs - subject to any retrictions or conditions that the donor wishes to impose on the attorney's role. Thus can an attorney operate a donor's bank and savings accounts, pay bills, collect benefits, manage investments for the donor and even sell their house or other property.

A 'Property' LPA doesn't just cover Incapacity

Once a Property and Financial Affairs LPA has been registered, the named attorneys are immediately able to assist the donor with the running of their affairs - including whilst the donor has full mental capacity.

As such a Property LPA is very useful aid to have in certain circumstances, such as for those with no or restricted mobility who cannot attend their bank or other place of business, or perhaps for a person who often works or spends time overseas and needs a trusted friend or relative to actively manage their UK affairs in their absence. A registered property LPA allows such options.

Joint Property and Property LPA Forms

There are some important issues relating to jointly held assets that both a donor and their attorney(s) should be aware of. Joint Property ownership is an area many people misunderstand, both generally relating to the background law, and more specifically concerning real estate and joint bank accounts.

For assets that a donor owns jointly with someone else - for most this will be their spouse or partner - invariably they are advised to ensure their spouse or partner is NOT their only attorney. Apart from having no 'Plan B' should their spouse or partner die or themselves become incapable, their jointly-owning spouse or partner will encounter problems when trying to handle shared assets for the donor in the (sole) attorney role.

Take as an example the sale of a jointly owned house or flat. Each owner is a Trustee. For sales after 29 February 2000, Section 7 of the Trustee Delegation Act 1999 contains the folllowing 'Two-Trustee' rules:

1) Capital monies arising from land must be paid to at least two Trustees;
2) A valid receipt for such capital monies must be given other than by a sole Trustee;
3) A conveyance or deed must be made by at least two Trustees to 'overreach' any powers or interests affecting a legal estate in land. This means that a receipt clause in a sale by joint owners is not acceptable if it is signed only by one person both as owner and as attorney for the other owner. Nor is it acceptable for one person to sign as attorney for all the proprietors.

The Land Registry state: "If such a document is lodged we will return it for execution by the donor of the power. The donor of a lasting power of attorney will not be able to execute a document if they lack capacity." If there's no other attorney acting under their LPA, then no sale can be effected! The Registry will then enter in the Title Register a restriction on sales by a sole owner.