How do you sell jointly owned property if one trustee has lost capacity?

A trustee of property will hold its legal title. If the property is jointly owned, then the trustee will hold the title jointly with the other owner. To dispose of any property where there are two legal owners, both owners will need to have the requisite capacity to be party to the transaction.

In situations where one joint owner has lost capacity, there are a few potential options to consider:

a) Did the individual execute a valid Lasting Power of Attorney (Property and Financial Affairs) prior to them losing capacity? If yes, then the appointed attorney may be able to facilitate the sale on the individual’s behalf, or
b) A Court of Protection deputy may be appointed, or
c) In some circumstances, a section 36(9) Trustee Act 1925 application may be needed to appoint a replacement trustee of the land so that a sale can proceed.

Where there is a continuing trustee (an existing and capable co-owner), the forms required by the COP for a section 36(9) application are:
1) COP1 Application form,
2) COP1D Annex D: Supporting information for applications to appoint or discharge a trustee,
3) COP24 Witness Statement,
4) COP12 Special undertaking by trustees.

An additional COP24 is required as a “certificate of fitness” where the proposed new trustee is not the deputy, proposed deputy or solicitor.

If the land is registered, the application must be supported by an official copy of the entries at HM Land Registry. If the land is not registered, a copy of the conveyance or other trust instrument showing who has legal title must be filed.

If you are in the position where you need to make such application, the private client team at EMW Law can make an application on your behalf to appoint a new trustee or EMW LAW LLP Trust Corporation in the event that no suitable trustee is available.