By Sophie Lawrence, Senior Associate, Head of Court of Protection and Dominic Trowbridge, Trainee Solicitor, Court of Protection Team.
When you own a home with a partner or family member, the last thing you want to think about is one of you losing mental capacity. However, conditions such as dementia, stroke or serious accidents can happen without warning.
In this article, we explain what happens when elderly parents or partners co-own a property and one loses capacity, and elaborate on the legal options available to families.
Why Mental Capacity Matters for Jointly Owned Property
If someone lacks mental capacity, they cannot legally sign documents or make decisions about their property and finances. For jointly owned homes, this can create a real obstacle when you need to:
- Sell the property to move or downsize.
- Release funds to pay for care or debts.
- Buy a more suitable home for health or mobility needs.
Even if the whole family agrees on the way forward, the law requires proper protection for the joint owner who lacks capacity. Their legal rights and financial interests must still be respected.
Using the Court of Protection to Appoint a Trustee
It is always best to plan by making a Lasting Power of Attorney (LPA). However, if that has not been done, the Court of Protection route ensures there is still a way forward. In this scenario, you can apply to the Court of Protection for the appointment of a trustee to act in place of the person who has lost capacity in relation to the property.
What does a trustee do?
A trustee in this context is appointed for a specific purpose, typically to:
- Sign documents, such as contracts and transfer deeds, on behalf of the person who lacks capacity.
- Deal with the legal aspects of a sale or remortgage.
- Ensure the share of the property belonging to the person lacking capacity is correctly managed.
Note: The person who has lost capacity does not lose their beneficial interest in the property. Their share of the proceeds remains theirs and must be used or managed for their benefit, for example, under a deputyship order or other appropriate arrangements.
Planning with Lasting Powers of Attorney (LPA)
While the Court of Protection offers an essential safety net, it is usually easier and more cost-effective to plan ahead by setting up a Lasting Power of Attorney.
A well-drafted LPA for property and financial affairs allows you to choose trusted people to act for you if you lose capacity in the future.
The Benefits of an LPA:
- Avoids Court Applications: It can avoid the need for a Court application in many situations.
- Simplifies Property Management: It makes managing or selling a jointly owned property much simpler.
- Provides Peace of Mind: It offers reassurance and confidence for you and your family
Note: Many people mistakenly assume their spouse or partner can automatically sign everything on their behalf. However, without an LPA or court authority, this is not the case.
How We Can Help
Finding yourself in a position where a trustee is required for the sale or transfer of a property can be daunting. Our specialist Court of Protection team provides support at every stage of the application process.
If you have any questions about a Court of Protection application, need advice on property and capacity issues, or considering putting Lasting Powers of Attorney in place, please contact Sophie Lawrence in our Court of Protection team.
- Telephone: 01258 459361
- Email: blandford@blanchardsbailey.co.uk
- Locations: Blandford, Dorchester, Weymouth.
You can also visit the Court of Protection page on our website for more information.
So, how can we help?
Whatever your requirements, our team is standing by.
Call us today on
01258 459361