Cate Searle and Clare English examine considerations needed before selling a protected party’s property
There has always been a lengthy checklist to work through when advising a lay deputy or attorney about the sale of a home owned by a person who now lacks mental capacity to manage their property and affairs, or a practitioner acting as professional deputy or attorney. The process is easier to negotiate if the person lacking capacity made a lasting power of attorney for property and finances (LPA P&F). However, practitioners dealing with situations where there is no LPA P&F, will need to make an application for the appointment of a deputy for property and financial affairs.
In many cases, the value of the property is needed to pay the costs of the person’s long-term care fees. Whether equity is to be released via a sale, or by securing local authority (LA) loan funding using a deferred payment agreement (DPA), the deputy can no longer simply make a best interest decision. Where the protected party (P) made an LPA P&F, unless they imposed a restriction in the LPA document, the attorney will have authority to sell P’s property, although tensions may result if co-attorneys or other family members object to the sale.
The ability to sell a property is especially important where P’s loss of capacity was sudden, perhaps due to a stroke or an acquired brain injury, resulting in a need for a care home placement. If P previously lived alone in their own home, with little or no care and support in place, and has limited capital assets, then the newly appointed deputy may need to sell P’s former home relatively quickly, in order to fund care or nursing home fees. Unlike the attorney, the deputy’s authority is governed by the Court of Protection (CoP) and the CoP must be satisfied that there is no tension between the decision to sell P’s home and P challenging their deprivation of liberty safeguards (DoLS) authorisation because they wish to return home. It is in this context that it is now relatively rare for the deputy appointment order to include authority to sell P’s home.
Best interest consideration: P’s home
The deputy or the practitioner will first consider how P’s care home fees will be paid in the short, medium and longer term, for example from non-property assets. Where P has moved into a care home, but their former home is occupied by their spouse, civil partner, partner or another qualifying relative, there shouldn’t be a need to sell the property; P’s former home should be disregarded from the LA financial assessment of their assets. For a full list of qualifying relatives in England, please see paragraph 35 of Annex B of Care and Support Statutory Guidance to the Care Act 2014. For Wales, please see paragraph 3.1 of Annex A of the Social Services and Well-being (Wales) Act 2014, Code of Practice part 4 and 5.
However, if P leaves an empty property which they solely or jointly own and does not qualify for a property disregard, then the deputy may need to consider selling the property or seeking a DPA to raise funds to pay care home fees.
Deputyship application: forms and formalities
In early 2023, the CoP introduced an online procedure for submitting and processing deputy P&F applications. This requires P and interested parties to be pre-notified of the intention to make the application, thereby alerting the applicant and the court to any objections at the beginning of the process. In place of the paper COP1 application form, the applicant inputs the relevant information via the online portal, and completes and uploads form COP1A “Annex A: Supporting information for property and financial affairs applications”.
COP1A provides the court with full information about P’s financial affairs, including their income, bank account balances, other capital assets such as investments, and details of any properties they own whether solely or in joint names.
Section 4.11 of the COP1A requires full details of all properties owned by P: the address, value, details of any mortgage, if P owns it solely or jointly, and the percentage share owned. Section 4.12 asks “Is authority sought to sell the property (properties)?” and “If Yes and there is more than one property, please specify which property is to be sold”.
The proposed deputy may think that having ticked “yes” in section 4.12, when the deputy order finally arrives some months later, it will provide the necessary authority to sell P’s property. Unfortunately, it is not that straight-forward. On the form underneath, there is a box that warns:
Important
If a property is held in joint names, the deputy, when appointed, will not have the legal authority to deal with its sale. This also applies when a property is held as tenants in common and the co-owner is deceased. Please refer to guidance notes for further information.
While this warning suggests that it is only where the property is or was jointly owned that the deputy will require further authority, this is not the case. The court is understandably concerned about the potential for P to return to live at home, whether as a result of a best interest decision or because they have regained capacity, only to find that their deputy has sold their property.
DoLS authorisations and the sale of P’s home
For deputy applications where P is living in a care or nursing home, the court will not grant authority to sell P’s home unless and until the applicant has provided evidence that:
- P lacks mental capacity to make decisions about their residence and care
- It is in P’s best interests to reside in and receive care in the care home placement
- P’s placement is subject to a DoLS authorisation, and
- P is not objecting to the residence and care arrangements, and P’s relevant person’s representative is not bringing a section 21A DoLS challenge about the placement.
Where the proposed deputy wants or needs to sell P’s property, in addition to using the online portal to submit the application, notification, capacity assessments, declarations and supporting information forms, they should also provide DoLS forms 3, 4 and 5 as supporting documents when uploading the deputy application.
The practitioner will be aware that the LA DoLS authorisation process is subject to significant delay. If DoLS forms cannot be exhibited with the deputy application, the practitioner should provide as much detail as possible about the DoLS authorisation process in P’s case, including the likely timescale for the LA’s assessments. The practitioner will need to request a separate order providing authority to sell once the DoLS authorisation is in place.
The newly appointed deputy will usually receive an order which states at section 2(c): “The deputy must not sell, charge or otherwise dispose of any freehold or leasehold property of which [P] is the legal owner and in which [P] has a beneficial interest without obtaining further authority from the court. If [P]’s beneficial ownership is joint, an order authorising the appointment of a new trustee (or trustees) in place of [P] must be obtained before any sale or disposition of the property.”
A practitioner advising a lay deputy P&F with such a restriction on selling should explain to their client that while they can deal with P’s bank, obtain access to their savings and use pension and other income to pay towards care home fees, a further application to the court will be required to deal with P’s property. Until specific authorisation is received the deputy cannot begin to sell P’s property, nor apply for DPA funding from the LA, which requires a charge being placed on the property.
If P’s non-property assets are limited or have been depleted by self-funding care fees, the deputy may need to approach the LA about informal loan funding pending the receipt of authority to sell P’s home.
Securing authority to sell after the DoLS authorisation is in place
Once the DoLS authorisation has been completed, and there is no section 21A DoLS challenge to P’s residence and care arrangements, the practitioner or deputy should not need to make a completely new application. They can usually seek authority to sell via an application notice, if the deputy order contained the wording: “The deputy may apply for further authority to include sale of property by making an application in accordance with part 10 of the Rules on form COP9 supported by a witness statement on form COP24 which exhibits forms 3, 4 and 5 of any standard authorisation.”
Case study 1: Sale of P’s home and a section 21A DoLS challenge
Sally and Colin seek advice about a deputy P&F application for their brother Jack. They explain that he has lived in a care home for over 18 months. Initially he seemed happy there and the care home said he never asked to go home. However, about six months ago, a paid relevant person’s representative was appointed for Jack and now he also has a legal aid lawyer who has applied to the Court of Protection. They have been told it is a section 21A DoLS challenge.
Sally lives near Jack and sees him often. She says he now talks constantly about going home and gets angry and upset when she or the care staff say he can’t, because he can’t look after himself and could end up back in hospital again. Jack is 58 and has an acquired brain injury from a bicycle accident 30 years ago; he didn’t get any compensation. He has had several temporary care home admissions over the past five years. He is supposed to have medical investigations for dementia and cancer but he refuses to go to appointments.
Jack owns a flat bought with money from an inheritance. He loves the flat but he can’t manage on his own and he sacks the carers who come to visit. Jack claims to have substantial savings from selling articles that he writes and from winning competitions, but Sally and Colin don’t know if that’s true. The social worker told Sally and Colin to apply to be Jack’s deputy P&F to sell his flat and pay his care fees. They started filling in the forms but then the social worker told them to pause because Jack wants to live at home. Currently the LA is paying the care fees because nobody can access Jack’s bank account or benefits.
You advise Sally and Colin to proceed with the deputy P&F application because it can take months to work through the system. Even if the CoP welfare litigation has not concluded, as deputies they will be able to manage Jack’s benefits and other income, sort out the bills for his flat and investigate his savings. Sally could apply to become Jack’s Department for Work and Pensions benefits appointee, while waiting for the deputy appointment order.
You advise that the court will not give them authority to sell Jack’s flat unless and until it has confirmed that it is in his best interests to remain at the care home. You can help them summarise the current situation in the deputy application forms and if the judge decides Jack should stay at the care home, they can ask the court for authority to sell.
Sally and Colin are happy with your advice and you help them ensure that their deputy application is as thorough and unambiguous as possible in the circumstances. You tick the box “yes” to indicate that authority is required to sell Jack’s property at section 4.12 of form COP1A.
Sally and Colin are concerned that Jack will suffer serious harm if he returns home, so you refer them to a CoP welfare litigation specialist who can help them prepare evidence that it is in Jack’s best interests to remain at the care home.
Case study 2: Sale of P’s home and the second trustee
Harry lives alone in a property which is jointly owned by his nephew Ross. Harry and his late wife Mildred severed the joint tenancy on the property some years ago, becoming tenants in common. They both made new wills leaving their share of their home to Ross. Mildred died last year and her half of the property passed to Ross via her will. Unfortunately, although Harry and Mildred sorted out their property and wills, they did not make LPAs, so Ross has been appointed as deputy for his uncle’s property and financial affairs.
Harry has become increasingly frail since Mildred’s death and has lost capacity to manage his finances. He has had several falls and Ross and the social worker agree that he is not safe at home alone and it is in his best interests to move into a residential care home.
The order appointing Ross as deputy includes the restriction on selling any property in which Harry has a beneficial interest. You explain to Ross that, in addition to needing to provide the court with evidence that the DoLS authorisation has been granted, he needs to apply for a second trustee in place of Harry.
When two or more people own property together, they are referred to as the trustees of that property. If one or more of those trustees lacks capacity to manage their property and affairs, then unless there is an LPA, the other owner(s) cannot sell or secure a DPA or equity release against the property without obtaining the court’s permission. The court has to make an order under section 36(9) of the Trustee Act 1925 appointing someone to replace the incapable trustee(s). A minimum of two trustees are required in order to sell a property owned by two or more people.
In Harry’s case, Ross is a ‘continuing trustee’ for his half of the property but although he is a deputy, he cannot also appoint himself as Harry’s trustee because of a potential conflict of interests between the roles of deputy, co-owner and trustee. You explain that the easiest thing is for a solicitor in your firm to be second trustee in place of Harry because the court will recognise the practitioner’s qualifications to act in that capacity. You reassure Ross that the role of trustee will only apply during the sale process and will not give the trustee any ownership rights over the property.
The application for authority to sell, and appointment of a second trustee requires a full COP1 application and a number of court forms including COP1D (supporting information for appointment or discharge of a trustee), COP12 (special undertaking by trustees) and COP24 (witness statement confirming that the requirements of practice guidance 9F, paragraph 5 of the CoP Rules have been complied with). Because the new trustee is a solicitor, the requirement for a certificate of fitness is dispensed with.
The requirements of the practice guidance may appear daunting; however, most of the questions can be answered simply on the COP24. You help Ross compile the necessary documents and submit the application with the court fee. Unfortunately, the application has to be made in paper form as the online portal can only be used for deputy P&F applications. Six months later, Ross receives the order authorising him to sell Harry’s jointly owned property and appointing a second trustee during the conveyancing process.
