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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10527
Experience:  Barrister 17 years experience
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This is my query. My husband and I own a second property

Customer Question

Hello,
This is my query.
My husband and I own a second property in the uk. It is in joint names. Here is a hypothetical question.
If he or i became unable to administer our affairs could the other spouse sell the jointly owned property ( taking into account there is no power of attorney in place)
Thank you,
Linda
Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. Dear *****, in England & Wales, property is held in law by way of a trust for sale. This is the situation with all properties, including jointly owned properties. This means that one co-owner can arrange for the sale of jointly owned property to realise their interest, even if the other co-owner is unable to administer their affairs. Accordingly, in your hypothetical example if you or your husband became unable to administer your affairs, the other spouse could still sell the jointly owned property. However, the problem would arise that half the sale proceeds would then have to be held in trust for the person without legal capacity. They would not be able to be dealt with until a Deputy was appointed by the court of Protection. So whilst a sale could take place half the sale proceeds could not be dealt with, after the sale.
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Customer: replied 1 year ago.
What if we had power of attorney for one another
Expert:  Buachaill replied 1 year ago.
2. Only a Lasting or an Enduring Power of Attorney is operable to cure any defect in legal capacity after someone gets dementia, for example. A normal power of attorney is not effective. Accordingly, if an Enduring or Lasting Power of Attorney existed, then it would solve the problem as then the person holding the power of attorney could act in the name of the other spouse.

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