Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
Copywright
Copywright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Abstract
This guide explains court of Protection property sale evidence checklist for deputies and attorneys for Court of Protection Property Sale Evidence in England and Wales. It gives a decision-specific overview of relevant information, evidence, risk factors, report quality and when a formal assessment may be needed.
When a deputy or attorney sells property belonging to a person who lacks capacity, the evidence file should be checklist-complete before marketing begins: the authority to sell, meaning the deputyship order or registered Lasting Power of Attorney and any restrictions within it; a current capacity assessment addressing the sale itself; best interests reasoning that records the person's wishes and where they will live; valuation evidence; and, since AGNI [2026] UKSC 16, the Article 5 evidence the Court of Protection now directs where the person lives in care and the court's approval is needed. This guide provides the checklist and explains what each item protects against.
How to use this checklist
This checklist gathers the evidence a deputy or attorney should hold before, during and after selling the property of a person who lacks capacity for the sale. It is sequenced as the transaction runs, and each item exists because its absence is a known point of failure: a requisition, an OPG query or a family challenge. Work it before marketing rather than at exchange, because most items take weeks to obtain and none can be manufactured afterwards.
Authority: the instrument or order
First, the source of authority in hand and read: the registered LPA with no restriction touching the sale, or the deputyship order with sale within its terms, or the specific order of the Court of Protection obtained where either falls short. Check the property is the one the authority contemplates, check for co-ownership and the trustee question it raises and check for any conflict, above all a purchaser connected to the office-holder, that pushes the transaction to the court regardless.
Capacity: the decision-specific assessment
Second, a recent decision-specific assessment of the person's capacity to sell this property: the transaction, value and proceeds identified; the person seen alone by an independent assessor; the functional test reasoned with the causative link shown; and the assessment dated close to the transaction it supports, refreshed if months pass before exchange. Care paperwork, DoLS assessments and general practitioner letters do not satisfy this item, and files offering them in its place invite every question that follows.
Best interests: the reasoning and the person's voice
Third, the best interests record: the person's participation so far as practicable and their wishes and feelings about the home in their own words; consultation with family and others engaged in their welfare, noted even where views conflict; the least restrictive analysis, sale now against rental, deferral or partial release; and the reasoning that lands on sale despite the alternatives. This is the item most often missing entirely, and the first the OPG or a challenger asks for.
The transaction file: value and terms
Fourth, evidence the sale serves the person commercially: an independent valuation or competing agents' appraisals, marketing conducted openly at a defensible price, any offer below expectation explained on the file and the terms free of side arrangements favouring anyone but the person. Office-holders answer for undervalue years later, and the contemporaneous valuation file is the answer, whilst its absence converts an ordinary market judgement into an allegation.
Liberty: the Article 5 evidence the court will direct
Where the person lives in a care home or supported setting and the court's authority to sell is needed, expect a direction to file a COP24 stating whether the person is deprived of their liberty within the meaning of AGNI, and evidencing it. The checklist items are: whether a standard authorisation exists, attached if so; a description of the setting; an itemised list of restrictions including any restraint or CCTV; medication and PRN use over the previous six months; the person's understanding of and response to their arrangements, in their own words; and the applicant's reasoned position. Hold an independent deprivation of liberty report that answers each head, keep it separate from the capacity assessment, and have the draft COP24 ready to adopt, because the direction usually gives 28 days from issue and arrives without warning.
Completion and the proceeds trail
Sixth, the post-completion record: proceeds into an account in the person's name or the deputyship account, applied to their care and benefit, every substantial payment documented against purpose, no loans or gifts to family without court authority and the accounts ready for the OPG's supervision cycle or an attorney's duty to account. The transaction's last mile is where good sales become breaches, and the trail is the protection.
The keep-forever file
Finally, the assembled file kept for the long term: authority, assessment, best interests record, valuation and marketing evidence, completion statement and proceeds trail, together with notes of any dispute and how it was addressed. Challenges to these sales arrive years later, after memories and sometimes the person have gone, and the office-holder's entire defence is this file, complete on the day of completion and retrievable on the day it is needed.
Key takeaway
The checklist compresses to six holdings: authority read and sufficient, a recent decision-specific capacity assessment, best interests reasoning with the person's voice, a defensible valuation file, the Article 5 evidence the court will direct where the person lives in care, and a proceeds trail the OPG could audit tomorrow. A deputy or attorney holding all six can sell with confidence; missing any one, the transaction is running on hope.
Frequently asked questions
Does a diagnosis automatically mean someone lacks capacity?
No. A diagnosis may explain why capacity is in doubt, but it does not answer the legal question. The assessment must still consider the specific decision, the relevant information, the support provided and whether the person can understand, retain, use or weigh that information and communicate a decision.
What evidence is useful for Court of Protection Property Sale Evidence?
The authority document and its terms, a decision-specific capacity assessment for this sale, a best interests record including the person's wishes and feelings, valuation evidence and the conveyancing file. Each answers a different challenge, and the file needs all of them.
When is a formal assessment for Court of Protection Property Sale Evidence useful?
Assess before marketing, and again if completion is delayed long enough for circumstances to change: stale capacity evidence is one of the commonest causes of late collapses in these sales.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Deputy or attorney preparing a sale?
Nellie Supports produces an independent Deprivation of Liberty Report applying AGNI for Court of Protection property sale applications, on its own or bundled with a COP3 on the person's capacity to sell and a draft COP24. Every report is peer reviewed before delivery. Call 0333 987 5118 or visit the property sale evidence service page.