Court of Protection Trustee Applications for Jointly Owned Property

Where an individual lacks the capacity to manage their own affairs, they may also lack the capacity to manage or sell their property, or act in their capacity as trustee.

A trustee is somebody who has control and legal responsibility of a property, and if an individual can no longer fulfil this role, an application to the court of protection is likely to be required.

The court of protection handles applications related to the appointment and discharge of trustees. There are two main categories, where there is a continuing capable trustee, this is where a co-owner can continue to act as a trustee, and where there is no capable trustee. These are applications under Section 36(9) and Section 54. There are other applications that may be required but these are the most common.

Under section 36 subsection 9 of the Trustee Act 1925, this allows the court to appoint a new trustee in place of a person who lacks capacity. This application is made to the Court of Protection, which will consider the suitability of the proposed trustee and the best interests of the property and its beneficiaries. The team here at Wilson Browne can make an application to appoint a new trustee or Wilson Browne Trust Corporation can be appointed to ensure the property continues to be managed effectively or to sell the property. For example, a property owned by a husband and wife, where the husband lacks the capacity to act as a trustee, an application would need to be made to the Court of Protection to replace the husband as trustee. The wife and a new capable trustee would then act jointly.

Section 54: Where there is no continuing Trustee  

Under Section 54 of the Trustee Act 1925, the Court of Protection team can make an application where there is no capable trustee, and two or more new trustees need to be appointed. An example of where this may arise, is joint owners lacking capacity, or joint owners where one owner has died and the other lacks capacity. The team here can make an application to appoint a new trustee, even if P is the only trustee of a property.

Application Process

The process for making trustee applications under Sections 36 and 54 involves several steps. Dependant on the circumstances these steps can be complex, and a professional may be recommended. The application steps can involve.

• Drafting the relevant forms
• Filing the Application
• Supporting Documents
• Court Consideration
• Issuing Orders
• Notification of relevant parties and P
• Final Order

Other applications are occasionally needed and our experts in the court of protection team are here to help. These applications may come under Section 18 and 20 of the Trustee Act.

How can we help?

Trustee applications in the Court of Protection are often essential for ensuring the effective management of your loved one’s property where they no longer have the capacity to do this themselves. By appointing new trustees, the court helps maintain the efficiency of management of property, and additionally safeguarding the interests of beneficiaries, and always acting in the best interests of your loved ones.

If you would like to discuss the application process or have any other queries, please contact our experts in the Court of Protection team. We can offer fixed fee appointments for queries, make applications on your behalf, or act long term as a deputy or attorney for your loved ones. We are here to help and can be all the help you need.