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Court of Protection Property Sale UK (COP GN2)

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Part ofCourt of Protection UK

Written by Brad Askew Solicitor (non-practising)
Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice.
Updated June 2026 · England & Wales
When a person who jointly owns property loses the mental capacity to manage their own affairs, the sale of that property can hit a legal wall. A valid sale of land held by co-owners generally needs the signatures of all trustees, and someone without capacity can no longer sign binding paperwork. That is the point at which the Court of Protection may need to step in. The court can authorise the appointment of a replacement or additional trustee so the transaction can complete lawfully. This page walks through the route usually taken, the statutory framework behind it, and the practical points to think about before making an application. It is written for co-owners, attorneys, family members and deputies who find themselves stuck partway through a proposed sale and need to understand what the court process looks like in England and Wales.

Overview

A jointly owned property is held on trust, with the legal owners acting as trustees for the beneficial owners (who are often the same people). When one of those trustees can no longer make decisions because of mental incapacity, they cannot validly execute a transfer of the property.

The solution is to replace that person as a trustee, or add a new trustee, so the sale can go ahead and the proceeds can be dealt with properly. The Court of Protection has jurisdiction over the property and affairs of people who lack capacity, and an application to the court is often the cleanest way to achieve this.

Crucially, a deputy appointed under the Mental Capacity Act 2005 cannot step into a trustee role automatically, because the Act expressly excludes trustee functions from a deputy's powers. That is why a separate trustee appointment is usually needed, even where a deputyship is already in place.

The governing statutes are the Trustee Act 1925 and the Mental Capacity Act 2005, and the procedure is set out in the Court of Protection Rules.

Key steps

  1. Confirm capacity is the real issue. Before starting an application, make sure the co-owner genuinely lacks the capacity to make decisions about the property sale. A capacity assessment from a suitably qualified professional, usually a GP or specialist, should be obtained. If the person still has capacity, the sale can proceed in the normal way without any court involvement at all.
  2. Identify which statutory route applies. If there is at least one other capable trustee, the application is typically made under section 36(9) of the Trustee Act 1925 to appoint a replacement. If the person lacking capacity is the sole surviving trustee, the application is instead made under section 54 of the Trustee Act 1925. Picking the correct route at the outset avoids wasted time and costs.
  3. Choose the replacement trustee. The new trustee needs to be someone willing and able to act, often an adult child, another family member, or a trusted professional. They will need to sign the transfer documents alongside any continuing trustee. Think carefully about who is appropriate, because the replacement trustee has legal duties to the beneficiaries of the trust, not just to the person selling.
  4. Prepare and submit the application. The application is made to the Court of Protection using the prescribed forms, supported by evidence of incapacity, details of the property, and information about the proposed trustee and the intended sale. A witness statement setting out the background and the reason the sale is needed should also be included. A court fee is payable, so check gov.uk for the current amount.
  5. Complete the sale once the order is made. After the court issues an order appointing the new trustee, the sale can proceed in the usual conveyancing way. The new trustee and any continuing trustee sign the TR1 transfer. The net proceeds attributable to the person without capacity are then held on trust for them, usually managed by their deputy or attorney in line with their best interests.

Common questions

If you're dealing with this kind of situation, a call with an experienced legal adviser can help you work out the right next step — from £89.

Common questions

Q Why can't a deputy just sign the sale documents?
Section 20(3)(c) of the Mental Capacity Act 2005 specifically prevents a deputy from exercising trustee functions. A deputyship gives someone authority to manage the incapacitated person's personal property and finances, but it does not transfer the legal powers that come with being a trustee of land. A separate appointment under the Trustee Act 1925 is needed, which is why two parallel applications are sometimes required.
Q Does an attorney under an LPA or EPA face the same problem?
Yes, in most situations. An attorney acting under a Lasting Power of Attorney or Enduring Power of Attorney generally cannot exercise the donor's trustee functions on their own, particularly where there is another trustee involved. This often surprises families, but the rule exists to protect beneficiaries of the trust. A Court of Protection or Trustee Act application is usually still required to free up the sale.
Q How long does the application typically take?
Timescales vary depending on how busy the court is and how complete the application is when submitted. Straightforward, unopposed cases can move through in a few months, while contested matters or those with missing evidence take substantially longer. Getting the medical evidence, witness statement and trustee consent in order before filing tends to be the biggest factor in keeping things moving.
Q What if a buyer is already lined up and waiting?
Explain the position to the buyer and their solicitor as early as possible. Most buyers will wait if they understand the reason, particularly in a slower market, but you cannot complete until the new trustee is in place. Some conveyancers will agree to exchange with a longstop completion date tied to the court order, though that depends on the circumstances.
Q Who pays the court fees and legal costs?
The costs are commonly paid from the estate or finances of the person who lacks capacity, or from the sale proceeds, on the basis that the application is being made for their benefit. In some cases the costs are shared between co-owners. The exact treatment depends on the court's direction and the facts of the case, so it is worth clarifying this early.
Q Can the replacement trustee be one of the other co-owners?
A person can act both as a continuing trustee and help appoint a new one, but the replacement trustee usually needs to be a different individual. This is because a sole trustee generally cannot give a valid receipt for the proceeds of sale of land held on trust, so two trustees are typically needed to complete the transaction.
Q What happens to the money from the sale?
The share of the net proceeds belonging to the person who lacks capacity is held on their behalf and managed by their deputy or attorney. Those funds must be used in the person's best interests, for example to pay for care, housing or day-to-day expenses. Records should be kept, and the Office of the Public Guardian may review how the money is being handled.
If you're dealing with this kind of situation, a call with an experienced legal adviser can help you work out the right next step — from £89.

Sources

This guide is based on primary UK law and official guidance.

Brad Askew, Solicitor (non-practising)

Written & reviewed by

Brad Askew Solicitor (non-practising)

Brad is on the roll of solicitors of England & Wales but does not hold a practising certificate and does not provide legal advice. LegalDocuments.co.uk is not a law firm and does not provide regulated legal advice.

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Legal disclaimer
This article is for general information only. It is a tool to help you find your way — not legal advice, and not a substitute for speaking to a qualified adviser about your situation.