Jointly owned property - Trustees' Application in the Court of Protection

Trustees’ application in the Court of Protection with regards to jointly owned property

If a property is held in joint names, Deputies will not have the legal authority to deal with the sale and will need to obtain a “trustee order” from the Court of Protection.

Where a property is held jointly and one owner lacks mental capacity, under section 36(9) of the Trustees Act 1925, the remaining owner is able to apply for leave to the Court to appoint a new trustee in place of the person who has lost mental capacity.

Where both joint owners lack mental capacity and neither have valid Property and Financial Affairs Powers of Attorney in place, there is a need for a Deputy to be appointed for each of the joint owners. A Court application can be made at the same time, under section 54 of the Trustees Act 1925 to vest the property in the names of at least two trustees. Each joint owner must have a different trustee to give a valid receipt on the disposal of the property.

In the event, where an additional trustee is required to satisfy the two trustee rule under section 36(6) of the Trustees Act 1925, an Attorney under a Property and Financial Power of Attorney is able to appoint an additional trustee, without the need to seek a Court of Protection Order.