Can I sell my relative’s house if they are in care?

Guidance on when a deputy will be authorised to sell a property owned by a person lacking capacity has been produced by the Court of Protection (COP), in conjunction with Solicitors for the Elderly, the Professional Deputies Forum, STEP and CoPPA.

When applying for a financial deputy to be appointed for a person living in residential care, those making regular applications to COP may have noticed the COP seeking clarification on whether a person's  deprivation of liberty has been authorised under the Deprivation of Liberty Safeguards (DoLS).  This is particularly relevant when a person has moved into a care home, leaving an empty property that will need to be sold to pay for care home fees.

The COP has been particularly careful not to authorise the sale of a person's property without confirming that the person who lacks capacity is not challenging  their deprivation of liberty and intending to return home.

For those requesting authority to sell a property as a person’s deputy, COP will require the following evidence before providing authority to sell.

• Evidence that the person lacks capacity to decide where they live and their care and treatment
• Confirmation that it is in best interests to receive their care in a care home
• That the person is subject to a standard authorisation of their deprivation of liberty
• That the person is not objecting to their deprivation of liberty and the deprivation is not subject to a challenge 

This information should be provided as part of the original application however that might not always be possible.  COVID saw backlogs at Local Authorities in authorising the deprivation of a person's liberty, which in turn delayed obtaining authorisation to sell property.  This can lead to care home debts remaining unpaid and may require the Local Authority to temporarily cover the cost of care until such time as the property is sold and the Local Authority can be repaid.  The prospect of having to 'plug the gap' so to speak may assist in getting any delayed DoLS assessments prioritised by the Local Authority.

Should DoLS authorisation not be obtained prior to a deputyship order being granted, then the deputy will need to return to COP once the deprivation of liberty has been granted.  This should be done by way of a COP9 form attaching the necessary evidence by way of a witness statement.

The guidance produced also includes a very handy checklist that should be referred to when submitting applications to ensure that they are right first time, thereby saving the Court's time in clarifying or correcting errors.