Managing tenancies where your resident lacks mental capacity: a step by step guide

I am frequently asked to advise in relation to the administration of tenancy agreements where the resident (or prospective resident) lacks mental capacity.

The starting point is that if a person lacks the mental capacity to sign a tenancy agreement, anyone intending to sign the agreement on the person’s behalf can only do so with the authorisation of the Court of Protection or where they have an Enduring/Lasting Power of Attorney (‘LPA’) or are a court appointed Deputy.

The same applies where a person wishes to end their tenancy. The general principle is that if somebody lacks capacity they cannot enter into fully binding contractual agreement and this will include a tenancy agreement. Firstly, an issue specific capacity assessment should be carried out – i.e. an assessment as to whether they have capacity to enter into a tenancy agreement. Only if they do not will an application to the Court of Protection be possible.

Once this has been done the starting point should always be whether or not there is an appropriate person who can make the necessary decision (either to enter into or terminate a tenancy) through the best interest process outlined in the Mental Capacity Act 2005 (‘the Act’). If there is a registered LPA in place or a Deputy for Property and Affairs has already been appointed, then the Attorney or Deputy would usually make that decision.

The Act places a limitation on signing legal documents (which would include a tenancy agreement or notice to quit).

Someone can only sign on the person’s behalf if they are:

  1. An Attorney under a registered Lasting Power of Attorney or Enduring Power of Attorney; or
  2. A deputy appointed by the Court of Protection; or
  3. Someone else authorised to sign by the Court of Protection.

If you are aware that there is a Power of Attorney or Deputy already in place then this should be your starting point. A small note of caution here – there may be some old Deputies (before the Act came into force) where they will not have sufficient authority to sign the agreement. Otherwise, you would need to look to the Court of Protection to obtain the necessary order to sign or surrender the tenancy agreement.

Although it is not uncommon for landlords to accept an unsigned tenancy in these circumstances, this does carry some risk and is usually done while the landlord makes the necessary application for authority.

Making the Application

It is vital to ensure that the application is made in the correct form. The court will not make orders unless satisfied that all appropriate steps have been taken.

I have in the past been asked to advise where an application has been made in the incorrect form or where it has not contained the information required. This has led to unnecessary delay and further procedural hurdles before the landlord could secure the order. The process is very straightforward so long as it is made explicitly clear that the only order that is required from the court relates to the tenancy agreement and that no further directions are required.

In order to make the application you would need to produce a COP1 application form setting out the order or declaration required accompanied by a COP3 assessment of capacity, a COP24 witness statement which should set out the circumstances behind the move (that is either into the property at sign up or out of the property for surrender) and confirming that a best interest assessment has been carried out, including consultation where applicable.

This should be accompanied by a covering letter confirming that the application relates to a tenancy agreement only and providing the requisite application fee.

As stated, the best way to avoid complication is to ensure that the information provided at the outset is clear, complete and concise. If these steps are followed, obtaining the requisite order should be a straightforward process.

For more information in relation to managing tenancies, or your policy or training requirements, please contact Donna McCarthy.

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