Buying and selling a house for someone with dementia...

[AdAstra70]

Mine seems to be an uncommon occurrence based on Google searches and inconsistent advice from solicitors. I’m very interested in hearing from anyone who may have actually lived this problem. I have so far contacted ten solicitors who either do not want to help, or give us quotes 3x those of others, and give us very conflicting advice regarding trustee vs deputy application. I am not getting any replies from my repeated emails to the Court of Protection contact address either. I’ve tried the OPG but have low expectations.

Details...

My father has dementia and has lost mental capacity. There is no LPA in place. He lives in a care home but my mother (80) still lives in their marital home. The marital home is a long way away from me and my sister who care for my mother on a weekly basis. Therefore she would like sell the property and move closer to us so we could care for her on a more frequent daily basis, especially as she is getting more infirm. My mother and father own the property outright as joint tenants i.e. trustees.

To sell the property I believe I have to apply to the CoP to make an order to replace my father as trustee on the property. Making me a Property and Affairs Deputy is NOT the correct approach when there is a continuing trustee in place (my mother) despite this being the (poor) advice from several solicitors who should know better. So me and my mother would be trustees, and my father and mother would be the beneficiaries. Then we sell the property. It’s what happens next I’m less clear about. Do I also need the CoP to make an order allowing me to purchase a new property appointing me as joint trustee (with my mother) on the new property?... or do I apply to be a deputy (I’m doing this anyway) and buy the new property with my mother out of the proceeds from the sale... but my mother and father would both be the trustees? The latter doesn’t sound sensible given I’m applying to remove my father as trustee from the first property.

I am planning to make the trustee and deputy application using a single COP1 form (plus all the other forms required for both deputy and trustee applications). One of the solicitors who did finally reply (but couldn’t take our case) said this would be ok.

We are desperate to move this forwards. I know it’s a long shot... but has anyone else been through this process successfully?

Thanks in advance.

 

[canary]

I had Court of protection deputyship for my mum and had to sell her bungalow.

Because I wanted to have CoP permission to sell her bungalow I put this in the original application where it says "what do you want the court to decide" I put in there that I wanted the Court to decide that my mother was no longer capable of handling her affairs, I wanted the court to appoint me as deputy and I wanted permission to sell her property. If I had not included the request for permission to sell her property I would have had to make a further request from the Court (along with additional time and expense). I think this can easily get left off, but you can do it all at once.

I cant see any reason why you should not be able to request selling the property that he jointly owns and buying a new one (that he would again jointly own) on the original application. However, I would recommend that you contact the Office of Public Guardians - phone 0300 456 0300, or email customerservices@publicguardians.gsi.gov.uk - and ask their advice. I phoned them a couple of times when I hit problems with the sale of mums property and I always found them pleasant and helpful (sometimes there is queue on the phone)

 

[AdAstra70]

That’s really helpful thank you Canary. It is easy to leave off that you actually want permission to do something as well as the deputyship itself.

Unfortunately where a property is jointly owned (joint tenants) both owners are actually trustees of the property and the CoP website is VERY clear that deputyship is not how to apply to sell a house where there is still a ‘continuing trustee’ in place i.e. my mother. I have to apply to replace my father as trustee. I assume that in your case the property was owned solely by your mother. Please correct me if that is not the case.

I have emailed the OPG. I think I will call them on Monday though based on your reply.

Thank you so much for your reply though. It really is appreciated that there is someone out there willing to try and help me. It means a lot.

 

[Kevinl]

Hi and welcome to TP
Has the house actually been put into a trust of some sort for IHT reasons or something?
My wife and I own our house, she's in care and I'm not a trustee, if I want to sell and move then I would have to appoint someone to ensure her rights were protected but I could get a family member to do that it doesn't have to be someone official, as long as her name is on the deeds of the new house and half of any equity released goes to her then it's ok as far as I understand it.
K

 

[nitram]

My wife and I own our house, she's in care and I'm not a trustee,

I think you will find that legally you are

"Wherever land is owned by more than one person ownership must be through a trust of land. A trust of land separates the legal title of the land from the equitable ownership rights. Legal title is held by the trustees and these are the named paper owners of the land. The trustees hold the land on trust for the beneficiaries ie those entitled to equitable ownership rights. The trustees and beneficiaries are often the same people. Two forms of co-ownership are recognised these are joint tenancy and tenancy in common. "

http://e-lawresources.co.uk/Land/Co-ownership.php

 

[AdAstra70]

Thanks very much for the welcome and the response.

I’m afraid if you are joint tenants then you are both trustees... and applying for deputyship (or anyone else doing so) doesn’t solve the problem. From COPGN2 guidance...

1. When two or more people own real property, i.e. land and houses, together they are referred to as the trustees of that property. If one or more of those trustees becomes incapable of managing their property and affairs they will not be able to sign any legally binding documents dealing with the property. If such a property is to be sold an application will need to be made for an order appointing someone to replace the incapable trustee, or trustees.
2. Section 20(3)(c) of the Mental Capacity Act 2005 restricts deputies from carrying out trustee functions. This does not mean that a person appointed as a deputy cannot also be appointed as a trustee. However, they are distinct and separate roles and require separate applications because the appointments are made under different statutes.
3. Applications for the appointment of a new trustee for real property can be divided into two main categories. Those where there is an existing and capable co-owner (‘the continuing trustee’), and those where the incapable person is the only surviving trustee.

If anyone out there has been through this I’d love to hear from them.

Thanks again!

 

[nitram]

To tidy up but unfortunately of no use to the OP

Needing a court order to appoint a trustee only applies if there if not an LPA in force.
With an LPA the court gives the power to the attorney(s), with a deputy the court retains the power meaning everything is more stringent.

With an LPA a deed appointing a trustee has to be sent to the land registry with no court involvement.

Even this can be avoided :

A way to avoid this issue arising in the first place would be for each owner of a joint property to either appoint different attorneys, or two attorneys with the power to act jointly and severally, for example, their spouse and another person. That way, there would be two different trustees available to sign the transfer deed and sell the property, and delays to the sale could be avoided.

This underlines the need for husbands and wives to give thought to who they should choose to act for them under an LPA, especially when it comes to dealing with jointly-owned assets like property.

https://www.attwatersjamesonhill.co.uk/news/lpa-joint-property-need-know/