Minors - What are the rules for holding and managing the property of a minor in England and Wales?
Under the law of England and Wales, a minor (children under 18) can hold most types of property in his or her own name, with the exception of legal title to land. Nonetheless, a minor has no capacity to contract and cannot give a valid receipt. Accordingly, assets left for a minor under a will may be held in bare trusts for them until the age of 18. Often, the terms of a will expressly provide for the interests of minors to be held in trust for them until they reach the age of 18 (or a later age).
If a minor inherits property under the intestacy rules, he or she is entitled to his or her share of an estate on attaining the age of 18 or on an earlier marriage or civil partnership.
Age of majority - At what age does an individual attain legal capacity for the purposes of holding and managing property in England and Wales?
An individual attains his or her majority at the age of 18 and, therefore, legal capacity to hold and manage a legal interest in land.
Loss of capacity - If someone loses capacity to manage their affairs in your jurisdiction, what is the procedure for managing them on their behalf?
When individuals lose capacity to manage their affairs, either their attorney or, if they do not have a validly appointed attorney, a deputy appointed by the Court of Protection, manages their affairs on their behalf.
Since 1 October 2007, it has been possible for someone to appoint an attorney by way of a lasting power of attorney (LPA) at a time at which he or she has full capacity. Prior to 2007, an attorney was appointed by way of an enduring power of attorney (EPA), and EPAs created prior to 1 October 2007 are still valid.
Two types of LPAs exist:
- a property and financial affairs LPA, under which an attorney can make decisions in relation to someone’s property and financial affairs; and
- a health and welfare LPA, under which attorneys can make decisions in relation to issues such as the medical treatment a person should receive.
A property and financial affairs LPA may be made either to be used only when the donor of the power lacks capacity to make decisions, or at any time. Health and welfare LPAs can only be used at a time at which the donor lacks capacity. An LPA must be registered with the Office of the Public Guardian.
Attorneys appointed under an EPA may only deal with decisions relating to the donor’s property and financial affairs.
Foreign equivalents of an LPA or the appointment of a deputy are recognised by the court in England and Wales as ‘protective measures’ if they are valid under the law of the country in which the donor is habitually resident. However, the court has the power to refuse to recognise such measures in certain circumstances where it considers that to do so would be unjust, against public policy, against a provision of the law of England and Wales, or inconsistent with a measure already taken in England and Wales in relation to the individual. In a 2018 case, the Court of Protection held that the reference to ‘protective measures’ in the Mental Capacity Act 2005 is intended to refer to arrangements that have been made or approved by a foreign court.
In relation to an LPA, a donor can specify that the law applicable to the power is that of any country of which he or she is a national, in which he or she was habitually resident or in which he or she has property.
England & Wales Guide
The England & Wales guide answers the principal questions for Private Clients relating to the law in this jurisdiction.
