Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
Could you confirm that the property is in your joint names?
If so, were you wanting to gift your husband's half share of the proceeds of sale or part of yours also?
We jointly own the property and wanted to gift the whole amount of the property to our friend also the children are trying to put a stop this can they do so ?
Thanks for your reply.
A jointly owned property is, legally, held on trust for both owners. There is a legal requirement for a sale of property held on trust to be sold by two Trustees, which means that it cannot simply be sold by you alone, using the Power of Attorney.
However, not all is lost . It is possible, under the Trustee Delegation Act 1999, for the attorney to work around this problem by appointing another trustee of the property (other than the other joint proprietor) solely for the purpose of the transfer. Your Solicitor will be able to take on this appointment and all it entails is him or her signing the Land Registry Transfer document together with yourself. There won't be any additional fees for you to pay to have this done, and you will therefore be free to sell your property.
As regards ***** ***** gifts, this is slightly more complicated.
Whenever someone goes into a Home, they are asked if they have ever owned a property and if so, what has happened to the proceeds of Sale. If the State can show that you have deliberately given away your sale proceeds to avoid paying Nursing home fees, they can still treat you as owning the sale proceeds when calculating the value of your capital. This in effect means you are faced with potentially paying nursing home fees but having no money as it has been gifted away. This scenario applies to your husband and indeed yourself, if you were ever to go into a nursing home. I am afraid there is not time limit wherby the State can enforce this rule, but the longer between you making the gift and you entering a Home, the harder it is for the State to prove you made the gift to avoid payment of nursing home fees.
As regards ***** *****'s half hare, as you are acting as his Attorney, you are under a duty to look after his monies and you are certianly not entitled to use his monies to benefit a third party. You would therefore be in breach of your duty as Attorney if you were to gift his half of the proceeds to your friend.
Your Solicitor, who deals with the Sale, will no doubt be able to discuss the above with you.
I hope this helps and sets out the legal position.