# Property Sale Evidence Duties | Nellie Supports Source: https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases Canonical: https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases Written by: Ben Slater Source review by: Kerry Slater Source review recorded: 2026-09-09 # Deputy attorney and trustee evidence duties in Court of Protection property sale cases A deputy, attorney and trustee may have different powers over the same property. Read the order, LPA and trust documents separately, identify any conflict and obtain legal advice where the proposed sale exceeds the authority held. ## Author and Publication Author: Nellie Supports Ltd Publication Date: 15/05/2026 ​ ## Citation The Court of Protection Rules 2017, SI 2017/1035. Available at: [https://www.legislation.gov.uk/uksi/2017/1035/contents/made](https://www.legislation.gov.uk/uksi/2017/1035/contents/made) ## Copyright Copyright © 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 A deputy, attorney and trustee may have different powers over the same property. Read the order, LPA and trust documents separately, identify any conflict and obtain legal advice where the proposed sale exceeds the authority held. This guide covers the relevant evidence, support, process and limits in England and Wales. ## What is on this page - [Contact](https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases) - [Overview](https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases) - [Frequently Asked Questions](https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases) - [Related Pages](https://www.nelliesupports.com/guides/deputy-attorney-and-trustee-evidence-duties-in-court-of-protection-property-sale-cases) A deputy, attorney and trustee may have different powers over the same property. Read the order, LPA and trust documents separately, identify any conflict and obtain legal advice where the proposed sale exceeds the authority held. Capacity to sell, best interests where required and lawful authority are different parts of the evidence. Residence or liberty may also need consideration, especially where the court directs it, but AGNI does not create one universal property-sale bundle. ## Three offices, one transaction Court of Protection property sale cases frequently involve the same few people wearing different legal hats: a deputy managing the person's affairs, an attorney under an LPA, a trustee of the legal title where the property is co-owned, sometimes two of these offices in one individual. Each office carries its own duties and its own evidence obligations in the sale, and the recurring failure in these cases is discharging one office's duties whilst silently assuming they cover the others. ## The deputy's duties and evidential position A deputy acts only within the order. Read its provisions about property and sale rather than assume general orders always include or exclude that power. Where authority is insufficient, obtain further directions or an order. The deputy must observe the MCA principles and cannot decide a matter the person can decide themselves. ## The attorney's duties and their limits A registered property and financial affairs LPA may authorise a sale within its terms. Check restrictions, appointment arrangements, the donor’s capacity and applicable best-interests duties. Self-dealing or a connected-party transaction may require court authority; substantial gifts beyond permitted powers also need advice and usually an application. ## The trustee dimension where title is shared Co-owned land is commonly held on a trust of land. Check the title, trust and powers to act, including any statutory arrangements for attorney or trustee functions. A deputyship or LPA does not settle every trustee issue. Obtain conveyancing advice on whether a new trustee or a court order is needed. ## Capacity evidence and its proper scope Capacity evidence should address the decision that the proposed authority requires. Decide what evidence is proportionate and whether an existing opinion remains relevant, further assessment is needed or the court has directed a particular form. Do not assume that every trustee and office-holder must commission the same independent report. ## Best interests and the separate trustee role Deputies and attorneys acting for someone who lacks capacity must apply the relevant MCA duties, including participation, wishes, consultation and less restrictive ways to achieve the purpose. A trustee’s duties arise under trust law and the trust instrument, including duties to beneficiaries. Holding both offices does not merge those legal duties. ## Conflicts, proceeds and the money trail Keep proceeds and accounts in accordance with the ownership, trust and authority involved. Avoid mixing personal funds or benefiting the office-holder without authority. A deputy’s reporting obligations and an attorney’s duties to account may differ; get advice on any proposed gift, loan or investment outside ordinary management. ## When the office-holder should go to court Seek legal advice where the order or instrument does not authorise the sale, a conflict or substantial gift is proposed, trustee arrangements are unresolved or a serious best-interests dispute remains. The court can determine issues within its jurisdiction. An order does not make every later aspect of the transaction immune from challenge. ## Key takeaway Identify each office and the powers and duties it carries. Keep capacity, best interests, trustee functions and authority distinct, follow the actual court directions and preserve an accountable record of the sale and proceeds. ## Frequently asked questions ### Does a diagnosis automatically mean someone lacks capacity? No. A diagnosis does not establish lack of capacity. For a decision under the Mental Capacity Act, consider the relevant information and practicable support, then assess understanding, retention, use or weighing and communication by any means. Any inability must be caused by an impairment of, or disturbance in the functioning of, the mind or brain. Will-making has its own legal test. ### What evidence is useful for Court of Protection Property Sale Evidence? Start with the order or registered power, title and trust documents, and the proposed transaction. Add the capacity, best-interests, valuation and other evidence relevant to the particular role and any directions. A trustee’s duties should not be assumed identical to those of a deputy or attorney. ### When is a formal assessment for Court of Protection Property Sale Evidence useful? Assess at the start of the sale process, not at exchange: the capacity evidence determines which legal route applies, and discovering the right route late is how these transactions lose months. Can someone have capacity for one decision but not another? Yes. Capacity is decision-specific and time-specific. The assessment must identify each decision and relevant time rather than give a general label. ## Related mental capacity assessment pages The related guides below provide further explanation of the decisions, evidence and legal processes discussed here. ### Court of Protection Property Sale Evidence ### Evidence needed for a property capacity report ### Evidence needed to sell property where care residence and capacity are disputed ### Read guide ## Practical next steps Ask the solicitor handling the sale to check who is authorised to act as deputy, attorney and trustee. They should explain whether any new trustee appointment, conflict of interest or court permission needs to be resolved before the sale proceeds. Record the person’s own views and how they were helped to take part. The assessment report provides evidence; it does not give anyone legal authority to sell. ## Primary sources and official guidance [Mental Capacity Act 2005](https://www.legislation.gov.uk/ukpga/2005/9/contents) [Mental Capacity Act Code of Practice](https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice) ## Related information - [Mental Capacity Assessment to Revoke a Lasting Power of Attorney](https://www.nelliesupports.com/lasting-power-of-attorney-services/revoke-lpa) - [NHS Continuing Healthcare Support](https://www.nelliesupports.com/services/continuing-healthcare) - [CHC Appeal Application: Drafting and Submission](https://www.nelliesupports.com/services/continuing-healthcare/chc-appeal-application) --- Nellie Supports Ltd · 0333 987 5118 · nellie@nelliesupports.com Office 11 and 12, Unit 20, Springfield Business Park, Grantham, NG31 7FZ