Selling Property When an Owner Has Lost Mental Capacity

When a loved one loses mental capacity, families often face difficult decisions about their property and finances. One of the most common questions we hear is: "Can we sell Mum's house now that she can no longer make decisions for herself?"

The answer isn't straightforward, but understanding the legal framework can help you navigate this challenging situation with confidence.

Understanding Mental Capacity

Mental capacity isn't a simple yes or no. It's decision-specific, meaning someone might have capacity to make some decisions but not others. The Mental Capacity Act 2005 sets out clear principles:

• Every adult is presumed to have capacity unless proven otherwise

• People must be given all practical help to make decisions before being deemed to lack capacity

• Unwise decisions don't automatically mean someone lacks capacity

• Any decision made on behalf of someone lacking capacity must be in their best interests

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Selling a property is a significant financial decision. If your loved one lacks the mental capacity to understand the implications of selling their home, you cannot simply proceed with the sale on their behalf, even if you're their next of kin.

Do They Have a Lasting Power of Attorney?

The easiest scenario is when your loved one created a Lasting Power of Attorney (LPA) for Property and Financial Affairs before they lost capacity.

An LPA allows someone (the attorney) to make financial decisions on behalf of the person who created it (the donor). If the LPA is registered with the Office of the Public Guardian and gives the attorney authority to sell property, the sale can proceed relatively smoothly.

Important: Not all LPAs allow property sales. Some have restrictions or require additional consent. Always check the specific terms of the LPA document.

What If There's No LPA?

Without an LPA, you'll need to apply to the Court of Protection for a deputyship order. A deputy is someone appointed by the court to make financial decisions on behalf of a person who lacks capacity.

The process involves:

1. Obtaining a mental capacity assessment – An independent professional (usually a registered social worker or psychologist) assesses whether the person lacks capacity to manage their property and finances

2. Applying to the Court of Protection – This includes detailed forms, supporting evidence, and court fees (currently £371)

3. Court review – The court considers whether deputyship is necessary and in the person's best interests

4. Appointment – If approved, the deputy receives a court order setting out their powers

   
   

This process typically takes 4–6 months, sometimes longer if the case is complex.

Can You Sell the Property as a Deputy?

Even with a deputyship order, you cannot automatically sell property. Deputies must apply to the Court of Protection for specific permission to sell.

The court will consider:

• Whether the sale is in the person's best interests

• The person's past and present wishes (if known)

• Financial necessity

• Alternative options (e.g., renting the property instead)

• The views of family members and carers

  
  

The court wants to ensure the person's interests are protected, not just that the sale is convenient for the family.

Best Interests: The Golden Rule

Every decision made on behalf of someone lacking capacity must be in their best interests. This isn't just about money.

Consider:

• Emotional attachment – Is this their lifelong family home?

• Future care needs – Will the sale fund better care?

• Wishes and feelings – Did they ever express views about selling?

• Family dynamics – Are all family members in agreement?

A sale that makes financial sense might not be in someone's best interests if it causes them distress or goes against their known wishes.

Practical Steps to Take

If you're considering selling property for someone who lacks capacity:

1. Get a professional mental capacity assessment – This provides the evidence you need for legal proceedings

2. Check for existing LPAs – Search the Office of the Public Guardian register

3. Seek legal advice – A solicitor experienced in Court of Protection matters can guide you through the process

4. Involve the family – Open communication can prevent disputes later

5. Document everything – Keep records of discussions, decisions, and the reasons behind them

The Emotional Side

Beyond the legal complexity, selling a loved one's home when they can't participate in the decision is emotionally difficult. You might feel guilt, uncertainty, or conflict with other family members.

Remember: you're not alone. Thousands of families navigate this every year, and professional support is available to help you make the right decision for your loved one.

How We Can Help

At Nellie Supports, we complete mental capacity assessments that meet Court of Protection standards. Our registered social workers and psychologists understand the legal requirements and the emotional weight of these decisions.

We assess whether someone has capacity to manage their property and finances, providing clear, court-ready reports that help families and legal professionals move forward with confidence.

If you're facing decisions about selling property for someone who may lack capacity, we're here to help you understand the next steps.

Need a mental capacity assessment? Contact our team on 0333 987 5118 or email nellie@nelliesupports.com to discuss your situation in confidence.