What to do if a co-owner loses mental capacity

Many properties are held jointly.  Often two people are registered at the Land Registry as the legal owners.  That does not necessarily mean that they are each entitled to half the benefit of the property.  As a legal owner the person is a trustee, with responsibilities to hold the property for those who are entitled to its benefit – the beneficiaries.  That said, normally the registered owners are both trustees and the beneficiaries.

If one of the registered owners becomes unable to sign the transfer form, the property cannot be sold, as both trustees should sign the transfer form. Most properties are held informally and so there is no trust deed that gives the remaining trustee the power to remove the disabled trustee and appoint a new trustee.  As such a replacement trustee should be appointed under section 36 of the Trustee Act.

As the usual situation is that both registered owners have some entitlement to the property, it is often the case that a new trustee cannot be appointed without an application to the Court of Protection.

Before the Court of Protection can allow a new trustee to be appointed, it will need evidence that the disabled person is incapable of acting.  Obtaining that evidence can be difficult, owing to confidentiality issues or their medical condition not being clear.  In applications where the issues are not presented clearly to the Court, the process can become protracted and expensive.  It is therefore best to make sure before making an application that all the proper evidence is submitted and if possible agreed.

If there is insufficient evidence as to person’s medical condition, it may then be necessary to take an application to a different court under section 41 of the Trustee Act.  This involves a different and more complex process requiring different evidence.

If you require a brief discussion as to your options, please contact our Court of Protection team 0207 940 4000.