It can often be a stressful time for families of loved ones when advised that they may need to sell their parents’ home due to their ill health or because equity in the property is required to fund care home fees or long term care.

When acting under a Lasting Power of Attorney (LPA) or Deputyship Order and it does not  specifically exclude the right to sell property then you may already have the necessary authority to go ahead and place the property on the open market for sale, deal with the signing of any necessary forms and the distribution of the net sale proceeds.

If there is a restriction in either the LPA or Deputyship Order which prevents you from selling, then you may need to make an application to the Court of Protection stating why it is in the best interests of the person you act for to sell the property.  This must be done before the property is placed on the open market to prevent delays with any proposed sale.

Once the Court is satisfied that the property should be sold, they will make an Order providing the  relevant authority to place the property on the open market and sell the property.  The Order will be required by the solicitor dealing with the sale before they can take instructions.

Any appointed Attorney or Deputy must ensure that they are acting in the best interests of the person who lacks capacity.  It is therefore essential that the property is not sold at an undervalue and the full market price is achieved.  You may also be prevented from selling the property to yourself, a family member or close friend.  To do so, may be in breach or any Order without the approval of the Court of Protection.

Care should also be taken if property is jointly owned and only one of the owners lacks capacity to make decisions.  This can often be the case where a property is owned by a husband and wife and one party lacks capacity.  If the spouse has been appointed, as their sole Attorney, then the Court of Protection needs to appoint another party, known as a trustee, to act on their behalf.  This can be a lengthy and costly process and cause delays to a sale.

If you are thinking of selling a property or you are appointed as an Attorney or Deputy and require some further advice, please contact either Catherine Richardson in our Residential Property Department Catherine.richardson@luptonfawcett.law or Paul Loftus in our Trusts, Wills and Estates Department paul.loftus@luptonfawcett.law or call 0114 276 6607.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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