ADVICE Q&A: Independent power




Q I am an in-house solicitor for a local authority and have obtained letters of administration for the estate of a deceased person because we are creditors. Are we entitled to our expenses?

A Yes. A creditor who obtains a grant may reimburse himself out of the estate for the expense he has been put to in obtaining the grant.





Q I am acting for a buyer in a residential conveyancing transaction. I have just received the contract package from the seller's solicitor and in the covering letter it states that he 'expects such papers to be returned to his firm on request if the transaction does not proceed to exchange'. I have never come across this before; is this correct?

A Yes. This has been included in the covering letter in case the transaction is aborted. A draft contract, along with the other papers supplied by the seller's solicitor to the buyer's solicitor in the contract package, belong to the seller until contracts are exchanged. If the transaction is aborted before exchange takes place, the buyer's solicitor should comply with a request for return of those papers made by the seller's solicitor. This is notwithstanding any contrary instructions issued by the buyer to his own solicitor. For the avoidance of doubt, it is suggested that the seller's solicitor indicates in his covering letter to the buyer's solicitor that he expects such papers to be returned to him on request if the transaction does not proceed to exchange, just as your seller's solicitor has done. See the Law Society's Conveyancing Handbook 14th Edition, available from the Law Society Bookshop (020 7320 5640).





Q I am preparing a lasting power af attorney (LPA) for an elderly client. The form requires the certificate provider to confirm that he or she is acting independently of the donor and in particular is not a person listed in the disqualification criteria. Does this mean I am not regarded as independent and so cannot provide the certificate?

A The Law Society's view is that regulation 8(3) of the Lasting Power of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 No.1253 sets out the disqualification criteria. This does not include the person who assisted in the preparation of the LPA. Our interpretation is that as long as the solicitor is not a donee of the LPA and is not within the disqualification criteria of regulation 8(3), they can be the certificate provider. It is also our view that if it had been intended that a solicitor should not perform both roles, it is likely that there would have been something to this effect in the regulations.



We therefore interpret the reference to 'independent' person in relation to the categories in regulation 8(3) as someone who is unconnected with the donor in terms of family relationship and is not a donee of the power or associated as an employee/director/partner/care home staff of a donee of the power, that is to say is independent of the person(s) exercising the power.



We have also received confirmation that the public guardian would treat such an LPA as valid unless there is a court decision to the contrary (that is to say if someone successfully objects to its validity on that ground).



The Law Society has prepared a practice note on LPAs which you may find useful, please search for 'Lasting Power of Attorney practice note' in www.lawsociety.org.uk.





Q Following the Mental Capacity Act 2005 (MCA), is there a prescribed form to be used for a client wishing to make an advance decision to refuse treatment?

A There is no prescribed form and in fact there are no particular formalities about the format of an advance decision; it can be written or verbal - unless it deals with life-sustaining treatment, in which case it must be written and specific rules apply.



Chapter 9 of the MCA code of practice provides specific guidance on this and it suggests that a written document may be helpful in all cases to prove that an advance decision exists. The code of practice can be found on the Office of the Public Guardian website: www.publicguardian.gov.uk.





Q In light of the Anti-Money Laundering Regulations 2007, what has the Law Society done to help solicitors comply with their obligations?

A The Law Society has prepared a practice note on anti-money laundering (AML) and counter-terrorist financing (CTF) which is available from the Law Society website. Further, the website sets out a number of AML services including the following:



- The Practice Advice Service (0870 606 2522) can help solicitors navigate the new practice note and respond to general queries on AML compliance. It does not provide legal advice or advise on conduct issues, nor does it advise on compliance with the 2003 regulations;



- The Solicitors Regulation Authority's professional ethics helpline (0870 606 2577) can provide assistance with conduct issues relating to money laundering;



- The anti-money laundering directory. Solicitors needing legal advice on AML compliance can access an online directory of solicitors who practise in this area and are willing to be contacted by other solicitors seeking legal advice. There is a link to this directory at www.lawsociety.org.uk.





Q Which documents have to be included in a home information pack (HIP)?

A Under the Home Information Pack (No 2) Regulations 2007 there is a list of compulsory documents which must be included in a HIP. These are: home information pack index - listing the documents contained in the pack; energy performance certificate; sale statement - giving specified basic information about the property; searches - to comply with the provisions of schedule 6 of the regulations; evidence of title; and leasehold and commonhold documents where applicable.



For further information see The Home Information Pack (No 2) Regulations 2007 and the Law Society publication Handling HIPs, which is available free to members of the property section (£25.00 to non-members), see www.propertysection.org.uk.





Q I act for a tenant who is purchasing a property from a local authority. Is there any requirement for the seller to produce a home information pack (HIP)?

A No. Properties being purchased under 'right to buy' schemes or where a tenant buys the property from the landlord fall outside the HIP regulations because the property is not being sold with vacant possession and also may not have been marketed to the public. See the Law Society publication Handling HIPs, which is free to members of the property section (£25.00 to non-members), see www.propertysection.org.uk.





This column is compiled by the Law Society's practice advice service (0870 606 2522). Comments relating to the questions should be sent to Ms Nasrin Master, practice advice service manager, The Law Society, 113 Chancery Lane, London WC2A 1PL. While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The Law Society does not accept any responsibility for liabilities arising as a result of reliance upon the information given.