Corporate & Commercial

Ferbrache & Farrell LLP’s corporate department offers full service corporate, banking and commercial cover and is able to advise on all aspects of Guernsey corporate and commercial law, including banking and finance, regulatory, investment funds, asset management and listings on The International Stock Exchange (TISE).

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
Dispute Resolution

The dispute resolution department at Ferbrache & Farrell LLP has vast experience of local and international litigation and dispute resolution generally, gained from acting in complex local and international high-value disputes, both in Guernsey and throughout the world.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
Property

The Guernsey property department is dedicated to providing tailored solutions that meet and exceed clients’ expectations. In addition, the property department provides support to colleagues in the corporate and dispute resolution departments on real estate-related technical points of law.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…
UK Real Estate

We are delighted to help in relation to providing legal advice for real estate in England and Wales. We listen. We learn what your needs are. We proactively respond. Whether it’s personal or commercial property, we always provide sound and pragmatic advice, adding value to the transaction.

Latest Insight
10 July 2024
News
In June 2024, The Law Society released the 5th edition of the TA6 Property Information Form. This updated form aligns with the National Trading Standards…
Private Client

Our services for private client matters include the drafting of realty and personalty wills, obtaining Grants of Probate, acting as professional executors and assisting foreign lawyers who have requirements in this jurisdiction.

Latest Insight
22 March 2024
News
In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys)…

In April 2022, the Capacity (Bailiwick of Guernsey) Law, 2020 (the “Law”) came into force, enabling a person (“Donor”)  to appoint an Attorney (or Attorneys) to manage their affairs when they no longer have mental capacity. The Law requires an Attorney to make an application to Court for certain significant decisions, such as permission to sell the Donor’s property.

Ferbrache & Farrell has successfully made the first two applications for permission to sell on behalf of Attorneys appointed by a Lasting Power of Attorney (“LPA”) made under the Law. Additionally, we provided comprehensive support throughout the simultaneous property sales, ensuring the seamless execution of these transactions.

The Lasting Power of Attorney – Property and Financials Affairs – disposing of Donor’s real property

If the Donor gave permission within their LPA for the Attorney to deal with their real property, the Attorney must follow the correct process when they deal with a disposal of real property. If the Donor included a restriction in relation to real property within the LPA, the Attorney will be unable to deal with the sale on behalf of the Donor.

The Donor can specify whether the LPA can be used while they still have capacity, or only once the Donor has lost capacity.

If the Donor still has capacity and the LPA permits, the LPA can be used as standard Power of Attorney for the sale of the property.

If the Donor has lost capacity the LPA will need to be activated before it can be used to deal with Donor’s financial affairs.

The Law imposes limitations on an Attorney’s power to dispose of the Donor’s real property once they have lost capacity, and property can only be disposed of by complying with the requirements under the Law.   Failing to comply with these requirements is an offence.

Permission to sell

In order to sell real property under an LPA, the Attorney must firstly identify a suitable buyer for the property. This may involve engaging the services of an estate agent to market the property effectively and attract potential buyers.

Once a buyer is secured, the Attorney will need make an application to the Court for permission to dispose of the property before the sale can take place (“Application”). An Advocate can play a crucial role in guiding the Attorney through the legal intricacies of the Application and the conveyancing process.

Before making the Application the Attorney must give 28 days’ notice of the intention to dispose of the Donor’s property to

(a) all other Attorneys; and

(b) any person of whom the Attorney is aware, after reasonable investigation, has an interest (whether vested or contingent) in that real property.

The Attorney will also need to obtain an independent valuation of the property to demonstrate that the property is being sold at an appropriate price.

Once all formalities have been complied with, the Court will consider whether granting the Application to sell the property is in the best interests of the Donor and if permission is granted, the property can be sold by the Attorney.

In order to safeguard the best interests of the Donors, when Attorneys are seeking to dispose of their real property, the Law requires a systematic approach and adherence to legal requirements. Ferbrache & Farrell can assist with both the conveyancing process and any court application required.

 

If you need assistance with the process please contact Jana Valkovska or your usual contact at Ferbrache & Farrell.