The Court of Protection department at George Ide LLP has assisted many clients over the years with various applications to the Court of Protection. The majority of applications relate to the appointment of a property and affairs deputy. Other applications commonly made require the Court to consider and approve a Statutory Will or Codicil made on behalf of an incapable person who lacks testamentary capacity to provide instructions directly.
Less common, but equally challenging, are applications that relate to the proposed sale of either property or land which is co-owned by at least two or more owners at the same time, where one or more of the co-owners are mentally incapable of managing their property and affairs. The co-owners are referred to in law as beneficial trustees.
In this respect a purchaser of the property or land will always require at least two trustees to receive the sale proceeds and to provide a good and valid receipt for the purchase monies. This enables a purchaser to obtain a good title from the sellers of the property or land, regardless of any other beneficial interest of third parties. Obviously difficulties will arise if one or more of the trustees have become incapable of managing their property and affairs as they are unable to join in the sale transaction.
Another scenario relates to a sole surviving trustee, following the death of a co-trustee, where a property is held under a tenancy in common. In this case, where the surviving trustee is incapable of managing their own property and affairs, an application to the Court of Protection for an appropriate Order would be required. Such events prevent a property or land from being sold, without first obtaining an Order from the Court. In both cases, it becomes necessary to apply to the Court of Protection for an Order authorising the appointments of an additional trustee; or in the alternative scenario above, for two new trustees to be appointed in place of a sole incapable trustee.
Such applications are provided for under Section 36(9) of the Trustee Act 1925 (incapable trustee) and Section 54 of the Trustee Act 1925 (sole surviving incapable trustee).
Due to the lengthy Court process, which from our experience is not a speedy procedure, it is a very wise move to consider the position before placing a co-owned property or land on the market for sale, where such a scenario exists. This would avoid unnecessary legal costs and expenses, due to the delay of the Court proceedings or indeed in a situation whereby the Court refuses to provide the required Order.
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