Can I sell jointly owned property when one of the owners lacks capacity?

This is a common issue where people hold property jointly and then, sadly, one or both of them loses capacity to make decisions regarding the sale of the property.

Where property is held jointly, the owners are the trustees of the property and hold the property on trust for one another. In circumstances where one or both lack capacity to manage their finances and there is no registered Power of Attorney, an application to the Court of Protection will be required in order to appoint another trustee, or trustees, in order to sell the property.

Court of Protection

The Court of Protection need to become involved to appoint the trustee(s) in the place of the person or people who lack capacity. Even if there is a deputy managing financial affairs, the deputy is not allowed to appoint a trustee.  This is a step that the Court has to take.  Nothing prevents the deputy from becoming the trustee as well, but they must be appointed by the Court of Protection.

In these circumstances, there are two different types of Court application. The first depends upon whether or not there is an existing co-owner/trustee of the property who has capacity.  The second type is where the person who lacks capacity is the sole surviving trustee.

The type of application that is required dictates which process must be followed and the evidence that must be provided to the Court.

These scenarios are not uncommon as many houses are jointly held or owned.

At Price Slater Gawne Solicitors, we are happy to assist with these types of application.  We also have a Trust Corporation that can be appointed as an additional trustee, if necessary, to assist with and facilitate the sale of jointly owned property.

If you would like to discuss this then please get in touch with our specialist Court of Protection team on 03333 058375 or email cop@psg-law.co.uk. We are here to help you.