There are a few circumstances in which an application must be made to the Court of Protection to sell a property owned solely by a person who lacks mental capacity. For example, an attorney acting under a Lasting Power of Attorney cannot purchase the donor’s property or sell the same to a close family member without permission of the Court. Another common example occurs where a deputy for property and financial affairs is not permitted sell the person who lack’s capacity’s property without a further application.
An application for permission to sell the solely owned property of a person who lacks capacity differs in substance depending on who the property is being sold to, and the reasons why authority is being sought. However, generally speaking, as part of the application process the Court requires information as to the person who lacks mental capacity, and the applicant, including names and addresses. The Court will also require a declaration that any joint attorney/deputy has consented or been notified of the application.
The Court will also require a statement providing details as to the property, the assets and expenditure of the person who lacks capacity (such as care fees), and relevant documents such as property deeds, and previous orders made by the court. Where a property is being sold to an attorney, deputy, or close relative of the attorney or deputy, the Court will also request evidence that the property is being purchased at market value.
As with all applications, the Court must be satisfied that an application to sell solely owned property is in the best interests of the person who lacks capacity. Regarding property sales in particular, it is therefore helpful to provide a copy of the individual’s Deprivation of Liberty Safeguards (DoLS) report, and any supporting documentation which shows that the person who lacks capacity can no longer live within their property.
Once the application has been submitted, the Court can either request further information, approve, or reject permission to sell the property. If the Court grants permission for the sale of solely owned property, the deputy or attorney must ensure that they instruct appropriate professionals to deal with the sale, and that the OPG is updated accordingly. The deputy or attorney will then have to manage any proceeds of sale in accordance with their duties, and apply these funds in the best interests of the person who lacks capacity.
If you need assistance with selling the property owned solely by a person who lacks capacity, please do contact a member of our specialist Court of Protection Team.