When P is sole-owner?

The Deputy order may contain a clause explicitly prohibiting the Deputy from selling, charging or otherwise disposing of property in which P has a beneficial interest without obtaining further authority from the Court.

If the Deputy order does not contain such a restriction, then the Deputy can proceed with the sale however it is advisable to still make an application if the sale is likely to be contentious, there is a potential conflict of interest or the property has been gifted under a Will.

When P is a co-owner?

Someone acting as an attorney under a registered power of attorney automatically acquires trustee functions in respect of trusts of land under the Trustee Delegation Act 1999. This means that in principle, an attorney is able to sell property belonging to the protected party without making an application to the Court, providing the other conditions are met.

Conversely, a Deputy is specifically restricted from carrying out trustee functions as part of their Deputyship powers under section 20(3)(c) of the Mental Capacity Act 2005. As such, an application must be made to the Court of Protection to appoint a trustee. The trustee does not have to be the Deputy however they can be – if the Deputy is appointed as trustee he should remember that these are separate roles and he will therefore have to act differently depending on which role he is acting in.

The process where there is an existing and capable co-owner

Where there is another existing trustee that is able to act, the Court application must be made under Section 36(9) of the Trustee Act 1925. A number of forms will be required including a COP12 which is a special undertaking by trustees and a COP1D which provides additional information relevant to appointing a new trustee.

The process where there is not an existing and capable co-owner

Where P is the only continuing trustee, normally resulting from the co-owner having passed away or a joint tenancy having been severed, an application to the Court needs to be made under section 54 of the Trustee Act 1925 and a minimum of 2 trustees must be appointed. The same forms are submitted as for where there is a continuing trustee however, additional documentation must be filed such as a copy of the notice of severance or a copy of the Will and grant of representation.