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.
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Abstract
This guide explains why DoLS authorisations are not enough for property sale evidence 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.
A Deprivation of Liberty Safeguards authorisation was never evidence about a property sale, and since AGNI [2026] UKSC 16 it is not even reliable evidence about liberty. Before the ruling, deputies routinely exhibited the standard authorisation to show the person needed to remain in care. After it, authorisations are expected to become rare, the test they were granted under has been replaced, and the Court of Protection is directing applicants to evidence whether the person is deprived of their liberty directly. Capacity to sell remains a separate, decision-specific question under the Mental Capacity Act 2005. This guide explains what an authorisation did, what it never did, and what the sale file needs instead.
The confusion this guide exists to end
Two separate mistakes have grown around the DoLS authorisation in property sale files. The older one is treating it as evidence about the sale: as if a finding that the person lacked capacity to consent to care arrangements said anything about whether they could decide to sell their house. The newer one, since June 2026, is treating an authorisation, existing or expired, as answering the court's question about liberty. It does neither. The authorisation was a finding on the Cheshire West test, which the Supreme Court has now overruled, and it was never a finding about property at all.
What a DoLS authorisation was
Under Schedule A1 to the Mental Capacity Act 2005, a supervisory body could authorise a care home or hospital to deprive a person of their liberty where six assessments were met, including that the person lacked capacity to consent to the arrangements and that the arrangements were in their best interests. The deprivation itself was identified on the Cheshire West acid test: continuous supervision and control, and not free to leave. Existing authorisations remain valid until they expire, but AGNI replaced the acid test with a multifactorial assessment and held that a person can validly consent under Article 5 without capacity. Supervisory bodies are now expected to grant far fewer, and many placements that were authorised will not be re-authorised.
What it does not do, before and after AGNI
It never said anything about capacity to sell: the relevant information for a property transaction is different from the relevant information for a residence decision, and a finding on one does not transfer to the other. It never conferred authority to sell, which comes from the deputyship order, a registered LPA or a specific order of the court. And after AGNI it no longer answers the liberty question either, because the court now asks whether the person is deprived of their liberty within the meaning of the new test, and wants the itemised restrictions, the medication record, the person's understanding and response and the applicant's reasoned position, whether or not an authorisation was ever granted. An expired authorisation exhibited to a COP24 tells the judge what a supervisory body thought two years ago under a test that no longer applies.
The capacity evidence the sale actually requires
The transaction needs a decision-specific assessment of capacity to sell this property: the nature of the sale, its approximate value, the destination and purpose of the proceeds, the consequences including for any prospect of return home and the alternatives. Conducted recently, with the person alone, and reasoned through the Mental Capacity Act 2005 functional test with the causative link shown, this is the document that answers the conveyancer's and the registry's question, and no care paperwork substitutes for it.
The authority the sale actually requires
Alongside the capacity evidence sits the authority: a registered property and financial affairs LPA whose terms cover the sale, a deputyship order expressly permitting it or a specific order of the Court of Protection, with the court also engaged where co-ownership, trusteeship or a conflict of interest complicates the seller's position. Identifying which applies, and obtaining what is missing before marketing, is the difference between a sale that proceeds and one that stalls with a buyer waiting.
Why the confusion persists
The muddle has honest roots: both regimes concern the same person, both involve capacity assessments and both generate official-looking paperwork, and for families navigating a placement, the DoLS process feels like the legal event that settled everything. Care providers sometimes reinforce it, assuring families the paperwork is in place without distinguishing which paperwork. The correction is simple once stated: liberty machinery for the placement, property machinery for the sale, and neither reaches across.
What conveyancers and the registry will ask
Buyer's solicitors and the Land Registry test these files predictably: who has authority to sell and under what instrument or order, where is the decision-specific capacity evidence for the sale, is it recent, and are co-ownership or conflict issues resolved. DoLS papers answer none of these, and producing them in response signals a file assembled by analogy rather than analysis, which invites deeper requisitions rather than fewer.
Assembling the file that completes
The complete file holds: the current placement authorisation, confirming the care arrangements are lawful but doing no more; a recent decision-specific assessment of capacity to sell; the LPA, order or court authority for the transaction; the best interests reasoning including the person's wishes and feelings about the home; and, where the court's approval was needed, the order obtained before exchange. Each document answers its own question, and together they answer all of them.
Key takeaway
A DoLS authorisation made a placement lawful under a test the Supreme Court has now overruled, and it never carried property authority or a capacity finding about the sale. Offering it as sale evidence answers a question nobody asked, and offering it as liberty evidence answers a question the court has stopped asking that way. Commission the decision-specific capacity assessment, produce the Article 5 evidence the court's direction actually specifies, identify the true source of authority, and the sale completes on evidence rather than assumption.
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?
A capacity assessment addressed to the sale itself: the property, its value, the consequences for the person's living arrangements and the destination of the proceeds. The DoLS paperwork can accompany the file as context, but it cannot substitute for the transaction-specific assessment.
When is a formal assessment for Court of Protection Property Sale Evidence useful?
Whenever a home is being sold for a person under DoLS or equivalent arrangements, assess for the sale as its own decision. It is precisely these files, where incapacity for care is assumed to imply incapacity for everything, that attract questions later.
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.
Sale file leaning on a DoLS finding?
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.