GUIDES
When sale, care and residence are disputed, identify and assess each relevant decision separately. Record the person’s wishes, realistic alternatives, best interests where capacity is lacking, authority to sell and any court directions about liberty.
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice. London: The Stationery Office.
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When sale, care and residence are disputed, identify and assess each relevant decision separately. Record the person’s wishes, realistic alternatives, best interests where capacity is lacking, authority to sell and any court directions about liberty. This guide covers the relevant evidence, support, process and limits in England and Wales.
When sale, care and residence are disputed, identify and assess each relevant decision separately. Record the person’s wishes, realistic alternatives, best interests where capacity is lacking, authority to sell and any court directions about liberty. Any Article 5 analysis must use current law after AGNI and consider the actual arrangements. A capacity report or sale order is not an authorisation of confinement.
A sale can overlap with disagreement about capacity, residence and the reason for moving. Identify what is actually disputed and what evidence is needed for each question. Avoid letting financial urgency decide an unresolved welfare issue.
The first discipline is analytical: care, residence and sale are three decisions with three sets of relevant information, and the person may have capacity for some and not others. The evidence plan should name each decision in issue, assess each that is contested and resist every invitation to blend them, because a file that treats one finding as settling all three hands the objecting side its ground of challenge and hands the court a reason to direct further evidence.
Assess the decisions genuinely in question, with support and accurate options. Residence evidence should include any realistic return home; sale evidence should include its consequences for that option. Give the person privacy and manage conflicts without assuming that every supporter’s presence makes the assessment invalid.
Where capacity is lacking, record the relevant best-interests considerations, including wishes and feelings, beliefs and values, consultation, practical and financial circumstances and realistic alternatives. Explain why a proposed course serves the person, rather than assume family agreement or a funding deadline settles it.
In contested sales the disagreement is part of the record. The file should show who objects to what and on what basis, how objections were considered, what was tried by way of resolution and why the proposed course is nonetheless advanced. Courts respond poorly to applications that present a contested position as consensus, and well to applications that name the dispute squarely and demonstrate the reasoning that survives it.
Where a serious dispute cannot be resolved within existing lawful authority, seek legal advice on an application to the Court of Protection and any interim arrangements. The court can decide issues within its jurisdiction; neither an application nor an eventual order guarantees that every future challenge is excluded.
Practically, contested sales need managing in time: buyers informed honestly of the position, marketing paused or conditioned where determination is pending, insurance and maintenance of the empty property maintained meanwhile and interim funding of care addressed so the timetable pressure does not stampede the evidence. A careful assessment can provide useful evidence, but it does not prevent later challenge or determine the court or other decision-maker’s conclusion.
Keep each capacity opinion confined to its decision and time, explain best interests separately and record the dispute fairly. Check the authority, title, valuation and any court directions. Where documents differ, explain whether this reflects a different question, time or evidence rather than force artificial agreement.
Connected disputes need separate questions and a clear route to decision. Record wishes, alternatives, capacity evidence, best interests where required, authority and any Article 5 issue, and obtain directions where necessary. Evidence assists the process without guaranteeing agreement or finality.
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.
Separate decision-specific capacity assessments for the sale and for residence, a best interests record covering wishes, feelings and the realistic options, valuation evidence and the authority documents. Where relatives dispute the plan, the independence of the assessor matters as much as the content.
Consider proportionate assessment where genuine doubt affects the sale, care or residence decision. Independent evidence may clarify matters but does not necessarily resolve disagreement or avoid proceedings. Ask which issues require determination before the transaction proceeds.
The related guides below provide further explanation of the decisions, evidence and legal processes discussed here.
Ask the solicitor to identify what must be decided before the sale can proceed. Gather separate capacity and best-interests material where required, record objections fairly and comply with any directions about residence or Article 5 evidence.
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