Can someone with dementia have mental capacity to sell, buy or transfer property?
A solicitor recently told me, "As soon as they say the word dementia, that's a red flag; we don't progress with the conveyancing."
Obviously, there were some caveats added to that statement around deputies and lasting powers of attorney. Still, the sentiment remained if someone had a diagnosis of dementia, then they were no longer able to buy or sell their home.
The law governing the capacity to sell property, the Mental Capacity Act (2005), is clear; however, a diagnosis alone is insufficient to say someone lacks capacity, and capacity should always be assumed until otherwise proved.
At Nellie Supports, we assess a number of people each month who live with a diagnosis of dementia but are still able to experience their understanding of the relevant information needed to buy or sell a house.
And that's the key, the relevant information to buy or sell your home; that doesn't mean they have to understand who the prime minister is (I mean, who knows anyway, they change so frequently!). It's about understanding the relevant information for this specific decision.
One of the myths we hear from solicitors is that by turning a client down, they are "protecting them", but actually, this isn't always true. In some cases, we do see property sales of older adults with dementia being pushed through by an abuser, but in many cases, it's the individual choice, and they have valid reasons why they want to move; one of the reasons can, in fact, be their diagnosis its self, in so far they want to move closer to the family because they know they are going to need help in the future.
By referring a client to a mental capacity assessor, several things happen. If a mental capacity assessment for property sales identifies a person as having the capacity, then that person has been empowered to continue to make their own decisions and can instigate discussions around lasting powers of attorney, ensuring that person's future decision-making is protected.
As any capacity assessment should be therapeutic in nature, the assessment process should help family and solicitors have a better understanding of their clients or loved ones' abilities; thus, if the capacity assessment regarding the property sale shows the person lacks capacity, the process has allowed those supporting them to protect them from future harm and can lead to applications to the court of protection for deputyship.
Finally, we can identify that there is undue influence or abuse happening. In turn, this can be then reported to the local authority and statutory services to ensure a safeguarding investigation is completed, ultimately protecting the person and potentially the conveyancing firm.
Regardless of the outcome of the assessment, the instigation of a mental capacity assessment at this point may have resulted in earlier support through deputyship or LPA applications being put in place, all down to a solicitor starting that process of considering capacity.
If you or your clients need support with an assessment of capacity for buying, selling or transferring a property, our team is happy to help.
find out more about our capacity to sell buy or transfer property here