My aunt needs to promote my gran’s home for a discount to a member of the family

My mum and her sister have power of attorney over their mother, who is in a care home and needs to sell her house to help cover the costs.

The house has been valued by multiple estate agents at £300,000 plus. 

However, my mum’s sister is trying to sell it to one of her family members for almost £50,000 less. 

This seems illegal, as someone holding power of attorney is obligated to act in the best interest of the person they represent.

What legal advice should be given to my mum to convince her sister that selling the house below market value is illegal?

My mum wants to ensure they get the highest possible price for their mother’s property to properly cover her care expenses.

Tanya Jefferies, of This is Money, replies: You are right to be concerned about your mother’s position if your aunt tries to go ahead with this plan.

Holding power of attorney is a serious duty and they are both meant to act in your grandmother’s best interests. 

You might also want to consider whether your grandmother’s local authority would regard a  house sale like this as a deliberate ‘deprivation of assets’ when it comes to assessing care fees. The charity Age UK explains deprivation of assets here.

We asked a lawyer to explain the legal position below. 

Chris Gilbert, partner for wills and probate at law firm Nalders, replies: I am sorry to hear about your mother’s predicament.

For the purposes of my response I am assuming that your mother and her sister are appointed as joint and several attorneys under a Lasting Power of Attorney for Property & Financial Affairs.

Furthermore, I am assuming that they have authority to act regardless of their mother’s capacity to manage her own Property & Financial Affairs.

A Lasting Power of Attorney states that the Attorneys must have regard to the Mental Capacity Act 2005 (MCA), regulations made under it and the MCA Code of Practice.

The code itself is lengthy, but that being said I would recommend your mother gives this some consideration as it contains some useful information that I am sure will assist her.

In the circumstances it would perhaps be helpful to apply some of the principles referenced in the Lasting Power of Attorney itself.

Your mother can then form an opinion as to whether or not she thinks her sister is in breach of her duties as an Attorney.

The ones that stand out to me are the following.

1. ‘Your Attorneys must assume that you can make your own decisions unless it is established that you cannot do so.’

In the first instance I wonder whether either your mother or her sister have spoken to your grandmother about this issue.

If your grandmother has the capacity to make the decision, ultimately it is her decision what she does even if your mother deems it unwise. In fact, this is specifically referenced at point ‘3’ of the Lasting Power of Attorney.

As such it could be that your mother or her sister’s opinion should not be considered anyway.

If we assume that your grandmother lacks the capacity (this in itself is a separate issue) to make this specific decision for herself then point ‘4’ stands out to me.

4. ‘Your Attorneys must act and make decisions in your best interests when you are unable to make a decision.’

In the circumstances it would seem hard to reconcile the sale of the property at a reduced market rate (assuming you have evidence that this is the case) as being in your grandmother’s best interests.

Section 4 of the MCA explains how to work out the best interests of a person who lacks capacity to make a specific decision at the time it needs to be made.

If your mother forms the view that her sister has not acted in her mother’s best interests then she should consider making a report to the Office of the Public Guardian.

Your mother must remember, if she is aware your sister is not discharging her duties in the appropriate manner she has a duty to ensure she does something about this.

Doing nothing could leave her open to criticism as it could be argued she is also failing to act in her mother’s best interests.

Please note this response should not be construed as formal legal advice.