Hi Sam, we have received this question by email:
Can a mortgage company force you to sell your home if you haven’t got power of attorney for the person who has dementia
Thanks for your question.
To sell a home the home owner(s) needs to have mental capacity to make the decision to sell and then to put the home on the market, agree to the sale and then sign all the official documents. Therefore, if the home owner lacks capacity, or if the home is owned jointly and one owner lacks mental capacity to make this decision then someone will need legal power to sell the house on their behalf.
Legal power here could be an attorney acting under a Lasting Power of Attorney (LPA) for property and financial affairs or an Enduring Power of Attorney (EPA). Alternatively it could be someone that has been appointed as a deputy and their power includes being able to sell the home.
If there is no legal power then someone can apply to become a deputy so that they can do this, and then manage the person’s money before and after the sale. Alternatively, a court order can be granted to allow the sale of the house.
I’m not sure about why this issue has arose, but if the home needs to be sold for legal reasons, such as the mortgage contract being broken then there will be a way round the owner not have capacity to sell, usually it will be a court order. There must be a legal reason here though as to why the sale should happen and a court would consider this before granting any order for a house to be sold and can rule that no order will be granted.
Again I’m not clear as to why this has arose, if you haven’t do speak to the mortgage company about the situation and see if it can be resolved. You may also wish to seek independent legal advice.
I hope this helps.