CoP Deputyship and Trustee application to sell a joint house?

[And247]

Hello!

My Dad is in a care home and incapable of managing his financial affairs. My mum is still in their joint home and is frail and gets confused but coping with visits from carers twice a day at the moment.

I have LPA for mum (dad always refused) which means I can manage their joint account and joint savings at the minute and hence ensure Dad's self funded welfare is looked after.

Looking ahead then it’s likely that mum will leave us first and hence I'm filling in the forms for deputyship of Dad's affairs at the minute just in case....

I have lots of questions, however the main ones focus on the 'Please state the order you are asking the court to make'.

From what I understand in Cop GN2 then if I apply now then as the house is jointly owned then I need a separate application on top of the deputyship application to become a trustee. Section 36(9) of the Trustee Act 1925(another£400 and 14 weeks..).

However, given that mum leaves her share of the house to dad if she leaves us first then I also understand I need a minimum of two trustees to sell the house that dad would then own and it appears this is a different application under Section 54 of the Trustee Act 1925than the one above? (another £400?)

Hence the dilemma I guess. My thinking is to just apply for deputyship now and then wait to see how events turn out in the future about the best way for potential house sales to fund care.....

If all this is true then for the deputyship application now I wonder what I should include anything about the house sale at all in the 'Please state the order you are asking the court to make'.

I'm thinking not as it needs to have a separate application (as house is jointly owned) anyway.

Any thoughts?

Thanks And

 

[Delphie]

I don't know enough about the Trustee Act to add much to your thoughts on that, apart from if mum were to die first and her assets (including the property) passed to your dad, then I don't think you need trustees to sell the property, if you have a Deputyship for dad of course. Once he's the sole owner and you're acting for him then there shouldn't be any need for trustees... ?

But yes, when filling in the part about what you're asking the court about the order you'd like them to make, do include the selling (and renting for good measure, just in case) of property. Otherwise this won't be included. You can, of course, reapply to expand these orders but, as you know, there are costs and, just as importantly, waiting times attached. No harm in thinking ahead and covering all bases.

 

[Saffie]

I don't know enough about the Trustee Act to add much to your thoughts on that, apart from if mum were to die first and her assets (including the property) passed to your dad, then I don't think you need trustees to sell the property, if you have a Deputyship for dad of course. Once he's the sole owner and you're acting for him then there shouldn't be any need for trustees... ?

That is incorrect I'm afraid. I needed to appoint a trustee to act for my husband when I sold a holiday chalet which we owned jointly and I had Deputyship for my husband. It differs from LPA as it is the Court that holdes the attourneyship, whilst we merely deputise for the Court.
That appointment also needed witness statements.
I don't know about the need for 2 trustees but if the property would then be solely owned by your father, then maybe one would suffice.
However, you seem to have researched this so you may well be right.

Yes, it is a separate application and therefore another £400!
I would just go for the basic Deputyship initially as you never know what will happen.

 

[Delphie]

I understand the need for trustees if the property ownership is co-joined, like in your case Saffie, but why are trustees needed for sole ownership, which would be the scenario if And's mum died first? Both my Deputyships allow me to sell property just as the people I'm the Deputy for would do, with the only difference being a slight alteration of some wording on the contract.

Could you point me to something about needing a trustee? Is there anything in the OPG paperwork or online? At the moment I'm renting their properties out but a sale of one of them is not out of the question.

 

[Saffie]

Perhaps you are right Delphie.
I was only writing from my own experience and if your's differs then you may well be correct and I apologise to both you and to And.
I really must sit on my fingers more.

If in doubt about anything, I would always ring the CoP or OPG for advice.

 

[Delphie]

Perhaps you are right Delphie.
I was only writing from my own experience and if your's differs then you may well be correct and I apologise to both you and to And.
I really must sit on my fingers more.

If in doubt about anything, I would always ring the CoP or OPG for advice.

No!!!

I love the fact that we can share experiences and information here. The helplines can be great but getting through can be... challenging!

 

[And247]

Hi Delphie and Saffie. Thanks for the comments!

I found the specific details about selling jointly owned houses and trustees are contained in the CoP leaflet Cop-gn2 on their form website.

hmctsformfinder.justice.gov.uk/courtfinder/forms/cop-gn2-eng.pdf

Section 2 says you need a separate application to the CoP to sell the house, (in addition to the deputyship).

Section 3 defines two types of application a) where there is an existing and capable co-owner and the incapable one (and you want to replace the incapable one). and b) those where the incapable person is the only surviving trustee because the capable one died.

Then section 4 and 5 defines the requirements (which appears to be two different applications to the Cop as different sections of the Trustee act?).

Hope this helps clarify what I found.


I guess my original question was about timing of the Deputyship application then the separate trustees application to sell the house in the future. However the trustee application also seems to depend on the circumstances of Mum and Dad at that time. So it seems sensible to wait a while I think to see how things pan out.

Hence I also think I don’t refer to any house sale requirements in the deputyship ‘Please state the order you are asking the court to make' section? (as its pointless as I need the trustees application).

Hmm – how complicated this is.

And

 

[Delphie]

It is!