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“My husband has severe dementia and I would like to sell our house so we can move closer to our children.” This enquiry is increasingly common.
The number of people with dementia is projected to increase rapidly over the next few decades, mainly due to increases in life expectancy and population demographics, according to Dementia Statistics Hub.
To sell the property, both owners need to have the relevant mental capacity to sign legally binding documents. So, if the property is jointly owned and the owner with dementia lacks mental capacity, the other owner cannot just sell the property. That applies even where the co-owner is your spouse.
There are two solutions. One is the expensive and slow process of obtaining a Court Order. The other is to have “planned ahead”. Court of Protection Proceedings
The NHS website estimates that by 2025 the number of people with dementia will have increased to around 1 million with 1 in 14 people over 65 likely to develop dementia and 1 in 6 people over 80.
Yet many people never consider that they may get dementia and therefore don’t make any preparations. In this instance, the only option available to the other owner is to apply to the Court of Protection to make an order to appoint someone to take the place of the owner who has lost capacity, so that the sale can go ahead.
This is a lengthy application and can be expensive. It currently costs £365 just to apply and you may have to pay an additional £485, if the Court decides there needs to be a hearing (though a hearing is usually only necessary if it is very complex or the application is contested e.g. by another relative). If a solicitor’s assistance is required to help with the application, then solicitor’s fees would also be incurred. That’s just the first year – once involved the Court usually remains involved, and in charge of the assets – with further fees, delays and inconvenience.
It is not unusual for an application to take 3-6 months before an order is made. Until the order is received the property cannot be sold and it is possible buyers would refuse to wait.Planning Ahead
The Court of Protection application can be avoided if you plan ahead.
While a person has capacity, they can prepare a Lasting Power of Attorney for Property and Financial Affairs (LPA). This will give their Attorneys the legal authority to act on their behalf in situations where they lack capacity and are unable to deal with matters themselves. This will include selling property that is jointly owned. The LPA enables the person to choose who will look after matters if they need help, instead of the Court choosing. If the person without capacity has a registered LPA then their attorney will be able to sign to sell the property on their behalf, if the sale is in their best interests – which it usually is. There would be no additional delays and no application to the Court of Protection.
A spouse can be appointed, although the sale is even simpler where you have the option to appoint a co-Attorney e.g. adult children.
Although it is possible to prepare LPAs yourself, (just as one can pull out one’s own teeth), it is always best to get legal advice to check that your LPAs are suited to your circumstances, that the right options have been included, they are drafted and subsequently signed correctly.
If you would like more information regarding Court of Protection applications or Lasting Powers of Attorney, please read our LPA Guidance Note
or contact one of our Solicitors below.
Rachel Hawkins - 01604 463165 or click here
to email Rachel.
Francesca Rossi - 020 7400 5037 or click here
to email Francesca.
Elizabeth Herbert - 01223 447495 or click here
to email Elizabeth.
Carolyn Bagley - 01908 247015 or click here
to email Carolyn.