Although the Mental Capacity Act 2005 allows certain decisions to be made without the need for a formal power of attorney (i.e. on the basis of the best interests principle), it does not extend to the signing of legal documents such as leases. Our experienced lawyers can advise you on your options. If necessary, we can help you by asking the Protection Court to authorize an appropriate person to deal with the lease on behalf of a tenant who does not have legal capacity. A person may only sign on behalf of the person if they: It must be assumed that a tenant has the capacity, unless otherwise specified. The only way to determine if a tenant is incapable is through a medical assessment and evidence, and this evidence is usually provided by a doctor or specialist. Mental capacity is also specific to a theme or subject. While it is not uncommon for landlords to accept an unsigned tenancy in these circumstances, there is some risk and this is usually done while the landlord is applying for the necessary approval. An application for an order to open or renounce a lease may be made to the Office of the Public Guardian, which is part of the Court of Protection. The application is supported by the capacity assessment and the best interests assessment. The application also requires an explanation of why the order is required, whether to enter into or terminate a tenancy.
These are filled out on standard forms, but it is important that the right forms are used and the right information is provided to avoid unnecessary delays and complications. If a person moves into a nursing home, assisted living residence or returns to a rental property, they will likely have a lease. However, if they cannot, no one in their family may have the authority to terminate the agreement on their behalf. This may cause the person to continue paying rent unnecessarily and an appropriate person must seek permission to represent the tenant. This must be accompanied by a cover letter confirming that the application is for a lease only and indicating the required registration fee. If a landlord has been informed of a person`s inability to perform, but the tenant signs a contract, the lease is voidable. In this case, the tenant would retain their rights, but the landlord may not be able to enforce their rights. For a person to be able to enter into a contract, he or she must be able to understand the nature of the agreement in question. If someone lacks mental capacity, it can lead to difficulties in managing inventory and/or leases.
So what can a landlord do if someone is unable to enter, alter, assign or terminate a tenancy? The starting point is that if a person is unable to sign a lease, anyone who intends to sign the contract on behalf of the person can only do so with the permission of the Protection Court or if they have a continuing power of attorney (APA) or is a court-appointed agent. It is often mistakenly assumed that social workers, family members or care managers can sign or terminate the lease on behalf of an incapable person. However, if the tenant does not understand the nature of the agreement (known as contractual capacity), a Protection Court order is likely required to authorize someone to sign the documents on their behalf. The law restricts the signing of legal documents (which would include a lease or termination). Once this has been done, the starting point should always be whether there is an appropriate person who can make the necessary decision (either to enter into or terminate a lease) in the best interests described in the Mental Capacity Act 2005 (Mental Capacity Act 2005, `the Act`). If there is a registered LPA or if an agent for property and business has already been appointed, the lawyer or representative should normally make this decision. If someone, especially a landlord, has evidence that a person does not have mental capacity with respect to a tenancy, they cannot enter into a lease, assign or change a tenancy, or terminate the tenancy. The Mental Capacity Act 2005 provides a legal framework for people who are unable to make decisions on their own or who currently have the capacity but want to prepare for a time when they may be lacking in the future. It determines who can make decisions in which situations and how they should proceed. A person may only sign or terminate a lease on behalf of an incapable person if he/she: To apply, you must provide a COP1 application form detailing the required order or declaration as well as an assessment of COP3`s capacity, a COP24 witness statement setting out the circumstances of the move (i.e. either to the property at the time of registration, or from B. ownership for delivery) and confirmation that an assessment of best interests has been carried out, including, where appropriate, consultation.
If you have proof that the person is not mentally competent, only someone with legal authority can act on their behalf in relation to the tenancy. Such legal authority could be: If you know that a power of attorney already exists, this should be your starting point. A small caveat here – there may be former MPs (before the law came into force) where they do not have enough authority to sign the agreement. Otherwise, you will have to apply to the Protection Court to obtain the order necessary to sign or deliver the lease. At MSB, we offer tailor-made training on this subject. If you have any questions or concerns about capacity and rent management, or would like to explore our bespoke training programme on the subject, please contact Amy Tagoe of MSB Solicitors amytagoe@msbsolicitors.co.uk. Although a landlord can file an application with the Protection Court, this is rare. Typically, there are alternative solutions for housing management, local authorities and/or social care, although it is important for a landlord to understand the unique capacity and risks of housing management that they may pose.
I have already been asked to advise myself if an application was made in the wrong form or if it did not contain the necessary information. This resulted in unnecessary delays and other procedural hurdles before the owner could obtain the contract. The process is very simple as long as it is explicitly stated that the only court order is for the lease and no further instruction is required. We charge a reasonable and competitive fee for filing the application, but there is also an additional court application fee of £371 payable to the court. All fees are paid from the assets of the person who does not have legal capacity. The same applies if a person wishes to end their tenancy. The general principle is that a person who is not legally capable cannot enter into a fully binding contractual agreement, including a lease. First, a subject-specific capacity assessment should be conducted, i.e. an assessment of their ability to enter into a lease. Only if this is not the case is an action before the Court of Protection possible. Amy has over 15 years of experience handling housing disputes.
She completed the Bar Vocation Course in 2005 and qualified as a lawyer, who was accepted into this position in 2008. While every effort has been made to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. We respectfully remind you that this is not a substitute for specific legal advice and should not be considered legal advice. No liability is accepted for any errors or omissions contained herein. This area of law can be confusing, but the experienced team at JMW Protection Court is here to help you along the way. Call us today on 0345 872 6666 to find out more or fill out our online request form to request a callback at a time that is convenient for you. If there is no such person with legal authority, it may be necessary to apply to the Court of Protection. It is important to ensure that the request is made in the correct form. The court will not make orders unless it is satisfied that all appropriate measures have been taken. For more information on rental management or your education policies or requirements, please contact Donna McCarthy.