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Selling a Property When a Joint Owner Has Lost Capacity
If you need or want to sell a property which you own jointly with someone who has lost capacity, they can no longer act to allow the sale to take place. In this circumstance, a trustee application needs to be made to the Court in order to proceed with the sale.
How JMW Can Help
Without making an application to Court, your property cannot be sold. Not being able to sell your property may cause financial, practical, or other problems for you and your family. Estate agents will not be able to help you sell your property until the application has been made and they do not make the Court applications themselves.
At JMW, we have a specialist Court of Protection team who can provide expert legal advice about whether an application needs to be made. If it does, we can make the application for you, providing support when you need it most at an already stressful time of selling your property.
FAQs on Selling a Property When a Joint Owner has Lost Capacity
When might a joint owner lose capacity?
If your loved one, friend or family member suffers from a brain injury, birth injury, dementia, age-related degenerative condition or learning difficulty, this may mean they can no longer make decisions about their property and financial affairs for themselves. This is known as losing capacity. If you are not sure whether they have lost capacity, already have an attorney or need a deputy, we can help.
Is the joint owner a trustee?
What many people may not realise is that when more than one person owns a property, a trust of land is created meaning that each of the owners is a trustee. In effect, anyone that owns a property with someone else is a trustee and may not even realise.
For most people, being a trustee for property, usually your own, does not affect you and you do not really play an active role. The only time when this will become a problem is when you wish to sell the property that you own with someone else, and that person no longer has capacity to manage their affairs.
When do I need to make a trustee application to Court?
If the joint owner has lost capacity, someone will need to step in their shoes as a trustee. In order to do this, an application will need to be made to the Court of Protection. The application will ask the Court to replace the person who lacks capacity as trustee and to appoint someone else. This is known as a trustee application and the purpose of it is to allow a sale to take place.
What are the next steps for making an application?
If you wish to go ahead, we will obtain the documents that are required and make a trustee application. Completing the application can be overwhelming as it involves using complex forms set by the Court, completing them correctly, following the process in the right order, within the time-frames set and paying the right Court fees.
Once the Court has processed the application, you can then sell your property. We understand that moving home can be a difficult and stressful time and so we take steps to alleviate that strain by communicating with you at all stages of the sale in plain English and in a way that suits you.
How much does a trustee application cost?
We charge a reasonable and competitive fee for making a trustee application but there is also an additional Court application fee of £371.
Who pays for the trustee application?
All fees that are reasonable and proportionate are paid from the assets of the person who lacks capacity. If you are already appointed as deputy or attorney you will already have authority to access the assets of the person who lacks capacity to cover these costs. We can advise you of your options.