Selling a property as a Deputy
Being a Deputy holds a lot of responsibility. Whether you are a Deputy for a friend or family member, understanding what is in the best interests of your loved one can be challenging and even emotional.
As a Deputy, some decisions you have to make are relatively straightforward, but others will be far more significant and complex, such as selling the Protected Party’s (‘P’) property.
What to consider when selling a property as a Deputy
One of the most common reasons for a Deputy to sell P’s property is to release funds to pay for their care, but it is also not unusual for P to need to downsize to a more accessible home as their condition advances.
There are several things to consider before putting the property on the market.
Do you have the authority to sell the property?
If you aren’t sure if you have the authority to sell P’s home, the best place to start is to check the Deputyship Order. When the Court of Protection granted your deputyship, this will have been issued to you. If you can’t find it, you can ask the Office of the Public Guardian (OPG).
Not all Deputies have the authority to sell a property. If your Order does not mention property sales, you will need to apply for authority from the Court of Protection. Applications can take several months, so it is wise to wait for approval before engaging with an estate agent.
If you attempt to sell P’s property without authority, it could lead to significant delays and even legal action.
If the person you are a Deputy has joint ownership of the property and the other party also lacks capacity, you may need to apply to the Court of Protection to become a Trustee.
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Is it within P’s best interests?
It goes without saying that your role as a Deputy requires you to make decisions based on P’s best interests. This could mean considering whether it is necessary to sell and if home adaptations could be more beneficial. It is also worth thinking about what they would want to do if they had capacity; did they express that they wanted to stay in their home at all costs, for example?
Selling a home is a big decision, but just because P lacks mental capacity to decide for themselves, it is still a good idea to ask them what they want (even if just for reassurance), even if they cannot make a final decision.
How to prepare for the sale
If you have bought or sold a property before, you will be familiar with the conveyancing process. However, selling the property on someone’s behalf has its own process and complexities. When considering what conveyancing solicitor to use, it is important to choose one that has experience in property sales for those who lack capacity. The same applies to the estate agent.
Selling P’s property
One of the key considerations when selling a property on P’s behalf is ensuring it is sold for a fair market value. It can be tempting to list the property at a lower price point for a quick sale with the aim of releasing funds as soon as possible. However, if you sell the property below the market value, you could face legal action from the OPG.
Although you have the authority to sell the property, it is good practice to inform the OPG so they can update their records, which is particularly useful should anyone question the sale later down the line.
Get your paperwork ready! When your solicitor exchanges contracts, they will need a copy of your Deputyship Order or court approval. If you do not have this available, it could delay the completion.
Proceeds from the sale
Once the sale completes, the proceeds will go into the Deputyship account, and this must be used in P’s best interests. You will need to include this in your annual report to the OPG.
Further information
For advice about selling a property as a Deputy, or if you are unsure about your responsibilities as a Deputy, our solicitors can help. For an initial chat with a member of our Court of Protection team, call us on 0117 325 2929 or fill out our enquiry form.