Problems can arise where one or more of the property owners lack capacity to maintain it and, where appropriate, to sell it. A common situation is where the property owners need long term care away from the home but there is no legal authority in place for anyone to manage their affairs and safeguard the problem.
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Assessing an individual’s mental capacity to manage their property and affairs is dealt with under the Mental Capacity Act 2005.
When it is confirmed that the individual lacks capacity to manage their property then it will be necessary to check for any attorney appointed to act on their behalf under a Lasting Power of Attorney (LPA) for Property and Financial Affairs or an Enduring Power of Attorney (EPA). A check can be made for any registered LPA or EPA by searching the register held by the Offce of the Public Guardian (OPG).
Some powers of attorney contain restrictions on the scope of the authority given to the appointed attorneys and this may extend to dealing with property but in most cases the appointed attorney will be able to maintain the property and, if necessary, arrange a sale.
Where the property owner has lost capacity and no one has authority to make decisions for them under a power of attorney, then it will be necessary to apply to the Court of Protection (COP) for the required authority and for a deputy to be appointed.
A deputy is often a close family member or friend, but it can also be a professional such as a lawyer or local authority. In some cases where urgent authority is needed to protect or sell a property then the Court can, at their discretion, expedite the application.
The position can be even more complex where one of two or more property owners lack capacity. Joint property is held upon a trust of land. The legal owners of the property are the trustees of the trust. If one of the trustees lack capacity, then it will be necessary for them to be replaced. However, a number of factors will determine the best course of action to remove the incapable trustee and can incorporate several areas of law regarding trusts, powers of attorney and when trustee powers can be delegated.
Case Studies: Property Owners that Lack Capacity
We assisted a local authority on a case involving a deceased property owner where the only person entitled to administer and benefit from the estate had been in care all her adult life and lacked capacity to act, with no one appointed to deal with her affairs. The property in question was subject to repeated vandalism and was occupied by squatters. Taylor Emmet successfully applied to the Court of Protection to be appointed as deputy and for authority to obtain a limited grant of representation for the property owner’s estate. The squatters were removed and the property was subsequently sold with the sale proceeds being used to improve the quality of life of the beneficiary.
