Zoe Hodge, Senior Associate, is an experienced private client solicitor with a particular interest in Court of Protection matters. In recent months, Zoe has been answering some frequently asked questions to assist Attorneys and Deputies in fulfilling their duties and staying within the parameters of their authority.
Can I sell the donor’s house?
First, you need to work through the five main principles of the Mental Capacity Act 2005 (see our blog Are you an Attorney or a Deputy? Do you know what your legal rights and responsibilities are? – Greene & Greene) to determine whether you can make such a decision on behalf of the donor.
If you determine that it is right for you to make this decision, the next step is to check the instructions (section 7) in the Lasting Power of Attorney (“LPA”) or the Court Order for any contrary intention.
Subject to the above, you can proceed but only in the following circumstances:
- If you are selling the house to yourself or a family member or at a value less than the market rate, you will need to make an application to the Court of Protection for permission to proceed.
- If the house is in joint names with another then you will need the co-owner’s approval and cooperation.
- If you are a Deputy and your Court Order does not specifically give you authority to sell the property, you will need to make a new application for permission to do so. Part of this application will be the need to show that the donor is the subject of a Deprivation of Liberty Safeguard (“DoLS”) assessment.
If the donor has moved into a care home, it is likely this assessment was done within a few weeks of admission to the home. Without a DoLS assessment, you are unlikely to get permission to sell the donor’s property by the Court.
You should be aware that Court of Protection applications can take approximately 6-12 months; therefore, if you are intending on selling the property, make sure you have your Court Order before you market the property to avoid holding up a chain and potentially losing a buyer.
This is only intended to be a summary and not specific legal advice. Should you require more information or would like to speak to us, please contact Zoe Hodge, or another member of the private client team.
Note: the costs of seeking advice are likely to be recoverable from the donor’s estate.
