Paul Fursman
Legal
Who is the client? Paying funds to third parties
Lasting Power of Attorneys are very common nowadays and are very much recommended. The person seeking the assistance is referred to as the ‘Donor’ and the Donor appoints one or more Attorneys (usually friends or family of the Donor) to act on their behalf.
There are two forms of Lasing Power of Attorney (“LPA”) – the first for health and care decisions and the second for financial decisions.
There are many situations where an Attorney will act under an LPA and will need the help of a solicitor, for example a Property and Financial Affairs LPA will allow the Attorney to act on behalf of the Donor in conveyancing matters. It is very common for Attorneys to act on behalf of family members or close friends who will need to sell their home in order to downsize or move into a care home.
However, the client will always be the Donor and not the Attorney, even though we will take instructions from the Attorney for and on the Donor’s behalf.
When acting for an Attorney under a LPA, as solicitors we will always need to transfer sale proceeds into an account in the name of the Donor and not their Attorney. For example, if you, as an Attorney, are selling your uncle’s home on his behalf, as he is the registered owner of the property the sale proceeds upon completion will need to be transferred into an account in his name.
A bank account should always be held in the Donor’s name. We will need proof of this account in the form of a bank statement, clearly showing the name of the Donor.
The question we will always need to ask is ‘who is the client?’ and we must ensure that we always transfer the funds in accordance with our policies.
Similar rules apply where we act on behalf of executors of estates. We need not transfer the funds to the account of a late registered proprietor of a property but we cannot transfer monies directly to the account of their executor(s). We can only pay monies to a bank account set up as an executors account and in the name of the executor(s).
Callie Nimki, Trainee Solicitor at Mullis & Peake, said:
“By making sure that the proceeds are going to the correct account ensures that we are taking the necessary steps to make sure that the Donor is not being taken advantage of. This is, of course, in accordance with our obligation, as solicitors, to act in the best interests of our client at all times.”