Case Update: Attorneys and Transfers of Property

In Chandler v Lombardi [2022], Jason Beer QC found that an Attorney’s lack of knowledge to seek the Court’s permission to make a gift of property was not an adequate defence.

Summary of case facts

Mrs Chandler owned a property in her sole name and before her death, the property was transferred into joint names with her daughter Ms Lombardi. Ms Lombardi actioned the transfer herself as she was her mother’s Attorney for financial affairs.

Mrs Chandler’s son later challenged the transfer in his capacity as Executor of her estate as he had never been informed about the LPAs being registered, or the decision to amend Mrs Chandler’s Will to leave the property to Ms Lombardi, rather than jointly to all four children.

Mrs Chandler had long-standing mental health problems and upon being diagnosed with dementia, the family began to dispute what was in Mrs Chandler’s best interests.

The Court held that Ms Lombardi did not have sufficient authority to transfer the property into her joint name as she did not approach the Court for permission. As a result, the Court rendered the transfer void and required the title register to be rectified so that the property was transferred back to Mrs Chandler’s sole name.

What does this mean for you as an Attorney?

The Court held that Ms Lombardi not being aware that permission of the Court was required, was not a sufficient defence, nor was the fact the conveyancing solicitor who helped to make the transfer did not inform her of this. This highlights the importance of receiving full and proper advice before making such gifts to ensure they are valid.

An Attorney’s duties are set out in the Mental Capacity Act 2005 and the accompanying Code of Practice. Upon signing a LPA, an Attorney adheres to comply with these duties therefore it is essential to take proper steps to ensure your acts are in accordance with the law. As an Attorney, you must act in the individual’s best interests therefore a gift or transfer of property to yourself is likely to require the Court’s permission. Without this permission, as in this case, the transfer is likely to be void. The Court requires permission to safeguard adults at risk from potential financial abuse as unfortunately, there are countless incidents of an Attorney or Deputy taking advantage and dishonestly transferring property in to their name, without the proper consent and understanding of the donor.

How can we help?

Our team regularly helps lay people make applications to appoint an Attorney or Deputies. If you are unsure how an intended or current appointment will affect a proposed transfer of property, get in touch with our team who can assist with your application to Court. Making these applications to Court can be complicated if you are unsure what is required, which is why we recommend receiving specialist advice before doing so. We are available on freephone 0344 3260049 or by email, for you to discuss your options.