A leading property lawyer has warned estate agents to be careful when dealing with Court of Protection sales to prevent homes being sold unlawfully.

These are when family members or other court-appointed nominees of those who have lost brain cognition, usually elderly home owners or brain injury victims, sell a property on their behalf.

But Kate Stockdale (main pic), Senior Associate in the Residential Property team at Wilsons Solicitors LLP says agents need to be wary when dealing with such cases.

“Property sales always throw up difficulties and pressures for everyone involved including estate agents,” she says.

“But Court of Protection property sales require expert handling, due to the sensitive situation in which they arise, and the legal obligations involved of a property transaction under a Deputyship Order.”

Stockdale urges agents to consider:

‘Loss of capacity’ meaning, and why a deputy is appointed

Loss of capacity is not straightforward and it is important to consider, ‘is the property owner able to make a decision at the time it needs to be made’.

People can lose the capacity to decide to sell a property for many reasons, and it is not just those people whose cognition has declined in their later years – for example someone may have acquired a brain injury through playing sport.

Where there is loss of capacity, the Court of Protection appoints an individual to act as a ‘deputy’ – i.e. someone who has legal responsibility for this individual.

Who has the right to instruct you on a property sale?

An estate agency employee must not make assumptions about who has the right to instruct them in the sale – they may be contacted by a variety of people to sell a property on behalf of someone who lacks capacity and you will need to consider the due diligence needed to ensure that the client asking you to market and sell a property has the right to do so.

Remember – not all deputies have the right to sell a property on behalf of an individual who has lost capacity.

A Deputyship Order may prevent them from selling a property without supervision from the Court of Protection.

You must request access to the Order before proceeding with any sale to check for this point.

If the Order doesn’t specify the deputy can sell a property on behalf of the individual, this still means the deputy must seek permission from the Court of Protection before instructing you.

If you as an estate agent have already been instructed, ask…

Who you may also be liaising with: You must consider the other people you may need to liaise with in the transaction.

A Deputy may be a professional. For example, a solicitor, an accountant or a representative from the Local Authority.

The Deputy must follow the Order, and so does not have complete control over an individual’s affairs. And even if the Deputy is a family member, you may be liaising regularly with other family members around the transaction to ensure the sale goes through.

Mental capacity

Stockdale also says agents must consider whether the owner still wants to be involved despite their mental incapacity, something the law encourages, and to remember that the Deputy act in the owner’s best interests.

“As an estate agent, you must provide any guidance and recommendations around asking prices, price reductions and negotiations in writing,” she says.

“Surveyors must also do this. This means process to obtain instructions will take longer.”

“The Deputy must also only provide information or answers that they know are correct, especially when they may have limited knowledge about the property.

“This means they are unlikely to be able to complete your questionnaires or those requested by the solicitors, and therefore, a buyer’s expectations around timeframes should be managed early on.”

Stockdale also says estate agents should remember all those involved are usually going through a very emotional and distressing time in their lives.

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