When acting as Financial Deputy for a protected party (‘P’) it can become necessary to sell P’s property if it becomes unsuitable for their needs or the proceeds of sale are required to finance care or more supportive accommodation. For example, P may need to move into residential care or into an appropriately adapted property.
Under Section 20(3)(c) Mental Capacity Act 2005, Deputies cannot carry out the functions of trustees and an application must be made to seek permission to appoint a trustee in place of P before the property can be sold.
Permission to appoint a trustee and authority to sell the property on behalf of P is granted by the Court of Protection, and the Financial Deputy may not act until this authority is granted. The necessary authority may be granted within the original Deputyship Order but, if it is not, then an application must be made to the Court of Protection for an Order for Sale.
When there are two or more owners and one of the owners has lost mental capacity, an application must be made to the Court of Protection who will then appoint someone to act for P (unless there is a Lasting Power of Attorney in place. The application would be made under S.36(9) Trustee Act 1925 to appoint a trustee and must outline evidence of why the property should be sold and how the proceeds of the sale will be distributed in relation to P's share.
Furthermore, Court of Protection guidance outlines that when P is in a care home, additional evidence is required before authority to sell may be granted. This includes evidence that:
- P lacks capacity regarding residence, care and treatment
- It is in P’s best interests to continue to receive care in a care home
- P is subject to a Deprivation of Liberty Safeguard (DoLS)
- P does not object to the DoLS and the DoLS is not being challenged
To meet these requirements, the application should contain detail of any best interest decisions made on P’s behalf and the DoLS authorisation from the Local Authority. Without DoLS authorisation, the Court of Protection are reluctant to grant an Order for Sale, as it is assumed P could have capacity surrounding residency and later they could decide that they would like to return home, even if this would be considered ‘unwise’ by other parties.
Following an application for an Order for Sale and the sale of the property, the Deputy must update the Office of the Public Guardian as part of the annual Deputyship Report, due to the financial significance of the decision.
Should you require advice on the sale of a property for someone who has lost mental capacity, please contact our Court of Protection team for expert guidance on 0344 326 0049 or email COP@ramsdens.co.uk
The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.