Deputies are under a duty to obtain legal advice for property related matters which is both on point and represents value for the ultimate beneficiary.
Why choose a conveyancer with known Court of Protection expertise?
Navigating property transactions can be challenging when they involve the Court of Protection. Beneficiaries and their families can have specific needs, and communication needs to be handled sensitively. Unfortunately, much of modern conveyancing has been volumised with large-scale providers who have limited time and knowledge of issues around capacity and may lack the specialist skills and human element required to navigate Court of Protection transactions related to property.
Understanding the Pitfalls
Property transactions under the jurisdiction of the Court of Protection come with unique challenges:
An understanding of the type of pressures a deputy must respond to is paramount to avoid delays and later legal issues.
Some key areas of consideration are set out below:
- Cost: it is important to obtain a clear indication of legal costs at the beginning of the transaction. Deputies will often wish to obtain multiple quotes but often quotes will contain a number of hidden or disguised fees. Obtaining the cheapest quote is not therefore always in the best interests of the parties involved.
Deputies are bound by Court of Protection Practice Note 19b on Costs, which provides:
14.The deputy is allowed to use P's funds to pay for the conveyancing costs of selling or buying a property as a specialist service that P would normally be expected to pay for if P retained capacity. Where the deputy is selling or purchasing a property on behalf of P and wishes to instruct their own practice, they should obtain 3 quotes (including from their own practice) in accordance with the judgment of Senior Judge Hilder in Re ACC [2020] EWCOP 9 and decide which quote to accept as being in P's best interests. This decision should be included in the deputy's report to the OPG.
- If the deputy wishes to accept their own practice's quote which is over £2,000 (plus VAT), the deputy should seek the court's specific authority before undertaking conveyancing work.
- Decision Making: Making decisions that reflect the best interests of the protected party requires thorough knowledge and sensitivity. It is important there is an understanding of the need to manage expectations appropriately and to make the information accessible to those involved. Especially important when dealing with these transactions is managing the family and Protected Party's needs and expectations and communicating these clearly. Often a Deputy will be cash buyers, and this come with the added pressure around timescales.
- Documentation: Proper documentation and record-keeping are essential to meet reporting obligations and avoid complications. Being flexible to answering the various questions that might arise from various parties involved, and ensuring the Deputy has the relevant authority in place from the Court, to carry out the transaction is important.
- Valuation: Accurate property valuation is crucial to ensure demonstrably fair transactions, especially when selling or buying on behalf of protected individuals. We can recommend and work with surveyors and other professionals, who are familiar with these transactions.
Originally published 16 May 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
