Attorneys, Deputies and Trustees – how to sell a person’s property when they have lost mental capacity
When a person loses mental capacity and is unable to manage their property and financial affairs, it is their Attorneys’ responsibility to either register an existing Enduring Power of Attorney or utilise a registered Lasting Power of Attorney to assist this person going forward.
If the person does not already have an existing Lasting or Enduring Power of Attorney, then the people around them will need to apply to the Court of Protection to appoint Deputies to assist with these matters.
How does an Attorney or Deputy sell a person’s property – key points
- Attorneys and Deputies are appointed under the Mental Capacity Act 2005; whereas the ownership of property is governed by different legislation.
- If there is more than one owner of a property a Trust of Land exists, and these owners are known as Trustees of the property.
- The Attorneys or Deputies must consider how this affects their ability to sell the property.
The following provides some scenarios for Attorneys and Deputies selling property.
Mrs Jones owns her property in her sole name and is the only person with right to occupy this property
Where there is one owner, generally speaking there is no Trust of Land, and therefore no trustees.
Mrs Jones’s Attorneys can deal with this property without further authority from the Court of Property or the exercise of Trustee powers being required, as long as the matter is not considered contentious and they have authority to act in this manner under the stipulations of the Power of Attorney or Deputyship Order.
Mr Buckley is the only surviving owner of the property (which was owned as tenants in common), but did not inherit the share owned by his late wife
In this case, a Trust of Land exists, as there is more than one beneficial owner of the property, but Mr Buckley is the sole trustee.
A beneficial owner is a person who has a right to the whole or part of an income from a property, and has a right to any sale proceeds of the property. In this case, Mr Buckley and the person who inherited Mrs Buckley’s share of the property (her brother, Mr Shah) are the beneficial owners of the property.
As Mr Buckley now lacks capacity to act as trustee of the property, his Deputies will need to seek authority from the Court to appoint two trustees to act in the sale of this property. The Deputies may also need to liaise with Mr Shah, who is also a beneficial owner of the property.
This will also apply in the case of Miss Davies.
Mrs Davies is the sole legal owner of the property (she is the person registered on the title deeds) but shares beneficial ownership with her sister, Mrs Darcy, as tenants in common. This would also apply if their ownership was held as joint tenants.
Deputies and Attorneys may also need to consider whether Trustees should be appointed when the donor is a trustee of a trust involving land, and in this case, whether they will benefit in terms of this trust.
Mr Selfridge is the sole Trustee of a trust including property but will not benefit from the trust
Again, in this case, a Trust of Land exists, but Mr Selfridge is the sole trustee.
Attorneys acting under an Enduring Power of Attorney, executed prior to 01 March 200o, and registered prior to 01 March 2001, are able to deal with a property trust regardless of whether the donor is or is not benefitting from the trust.
However, in this case Mr Selfridge’s Enduring Power of Attorney was executed in 2006 and not registered until 2020. Therefore his Attorneys will need to seek the approval from the Court of Protection to appoint new trustees as Mr Selfridge can no longer act in this role.
Mrs Cohen owns a property with her husband, Mr Cohen, as joint tenants, and Mrs Cohen has lost capacity
As there is more than one owner, a Trust of Land has been created, and Mrs Cohen is a co-trustee of the property with Mr Cohen.
Mrs Cohen’s Deputies should seek to liaise with the Court of Protection to appoint a trustee to replace Mrs Cohen in the sale of the property, and they will need to act alongside Mr Cohen in any sale of property.
This is a common situation, and often occurs if a person has lost capacity and moved into residential care, with the remaining trustee wishing to sell and downsize.
This also applies if a person lacking capacity a co-trustee of a trust involving land and is also a beneficiary of the trust.
Mr Windsor is a co-trustee in a trust including land, but will not benefit from the trust
As there is more than one owner, a Trust of Land has been created, and Mr Windsor is a co-trustee with the other owner of the property, his sister, Mrs Osbourne.
Again, Mr Windsor is not benefitting from the trust, his Attorney can only act in this matter under the authority of an Enduring Power of Attorney dated prior to 01 March 2000, and registered by 01 March 2001. If his Enduring Power of Attorney had been executed and registered later, his Attorney would have needed to contact the Court of Protection for guidance and assistance. His Attorney will also need to work alongside the existing trustee of the trust, Mrs Osbourne.
Legal support for Trustees, Deputies and Attorneys who need to sell property
The responsibilities and challenges for Trustees, Deputies and Attorneys who need to sell property can be complex and often professional support is required. The Later Life and Wills & Estate Planning Teams at Rix & Kay can advise further on situations where a Trusteeship may need to be considered, and are experts in Trustee and other Court of Protection applications.
Contact our later life team in Sussex and Kent
To discuss matters relating to Trusteeship applications or other Court of Protection matters, please speak to Katherine Norgrove e. firstname.lastname@example.org or call 01825 744434, Bruce Clarke e. email@example.com or call 01732 440853 or Max Wright e. firstname.lastname@example.org or call 01273 766901.