Selling a Property as a Deputy: A Comprehensive Guide

When acting as a deputy under a Court of Protection order, you may need to sell a property on behalf of the person who lacks capacity (P). This could be necessary to fund care, downsize to more suitable accommodation, or manage their financial affairs effectively. However, the process is subject to strict legal and procedural requirements to ensure P’s best interests are protected.

Securing the Property

First things first, if P has moved into care, ensure the property is insured and well-maintained during the sales process. You should also consider arranging house clearance services if necessary.

This guide outlines the key steps and legal considerations involved in selling a property as a deputy.

1. Do You Have the Authority to Sell?

Check the Deputyship Order

Your first step is to review the deputyship order issued by the Court of Protection. Not all financial deputyship orders automatically grant the authority to sell P’s property.

If the order specifically authorises property sales, you can proceed with the transaction as long as it is in P’s best interests.

If the order does not mention property sales, you will need to apply for additional authority from the Court of Protection before proceeding.

If you are unsure, seek legal advice to clarify your powers. Acting without the proper authority could lead to delays, legal challenges, or even personal liability.

Joint Ownership Considerations

If P owns the property jointly with someone else (e.g., a spouse or family member), additional steps may be required. In cases where the co-owner also lacks capacity, a deputyship or trustee application may be needed to sell the property.

2. Assessing P’s Best Interests

Under the Mental Capacity Act 2005, all decisions made on behalf of P must be in their best interests. Before proceeding with a sale, consider:

Does P need to sell the property? For example, is the sale necessary to fund care home fees, or is the property unsuitable for P’s needs?

Would P have wanted to sell the property if they had capacity? If they previously expressed a wish to remain in their home, this must be taken into account.

Are there any alternatives to selling? Could renting out the property generate income while keeping P’s assets intact?

What are the views of family members or close friends? Their input can help ensure a well-rounded decision.

Where possible, consult P to understand their preferences, even if they cannot make the final decision.

3. Applying to the Court of Protection (If Required)

When an Application is Necessary

If your deputyship order does not grant permission to sell, you must apply to the Court of Protection and include a witness statement which should outline:

1. A description of the property
2. A professional valuation of the property
3. The circumstances in which P came to be living in their current placement
4. Steps which have been or will be taken in respect of any Deprivation of Liberty
5. Why selling is in P’s best interests
6. Any steps taken to consult P or their family
7. How sale proceeds will be used

• The court may take several months to process the application, so factor in potential delays when planning the sale.

Preparing for the Sale

Once you have the necessary authority, you can begin the sales process. Steps include:Valuation & Estate Agents

• Obtain at least three valuations
• Appoint a reputable estate agent with experience in handling property sales for those who lack capacity.

Legal Representation

Instruct a solicitor who understands deputyship-related property transactions.

5. Selling the Property

As a deputy, you must ensure the property is sold for a fair market value. Selling below market price without justification could lead to legal challenges or intervention from the Office of the Public Guardian (OPG).

Key Steps in the Sales Process:

1. Accepting an Offer – Ensure the offer reflects market value, taking into account property condition and local prices. You can request a “Best Price Certificate” from the estate agent.

2. Informing the OPG – While you don’t always need approval before completing the sale, keeping the OPG informed helps demonstrate transparency.

3. Exchanging Contracts – Your solicitor will handle the exchange, ensuring the deputyship order (or court approval) is in place.

4. Completion – Proceeds from the sale must be placed in a deputyship account and used in P’s best interests.

6. Managing Sale Proceeds

Once the sale is completed:

• Inform the OPG of the sale and update P’s financial records.

• Consider financial planning – If the funds are not immediately needed, seek professional advice on managing them in P’s best interests.

• Keep detailed records – The OPG may require evidence of how funds are used, so maintain a clear audit trail.

Final Thoughts

Selling a property as a deputy is a complex process that requires careful planning and strict adherence to legal requirements. Ensuring that all steps are taken in P’s best interests, obtaining the necessary court authority, and keeping accurate records will help protect both P’s rights and your position as deputy.

If you’re currently considering a property sale as a deputy, get in touch with our team.