Can a Guardian sell and buy property for an incapacitated adult?

When a Guardian is appointed in Scotland, they take over the management of the assets of the incapacitated adult. That means they are given a range of powers by the Sheriff in their appointment and those powers may include the power to sell and buy property. To understand the powers a Guardian has, it is important to understand what a Guardian is and how a Guardian is appointed.

When an adult is or becomes incapacitated to the extent that they can no longer look after their own affairs, and has not previously granted a Power of Attorney, a Guardian may be appointed. The Guardian will deal with the affairs of the incapacitated adult and may make decisions regarding the adult’s finances and welfare. The Guardian’s powers are defined by the courts at the time of appointment. A Guardian might deal with decisions relating to the long-term care of the incapacitated adult or they may deal with the incapacitated adult’s finances. Frequently, a Guardian will deal with both the welfare and finances of the incapacitated adult.

A Guardian is appointed through a court process. The individual wishing to be appointed lodges a petition with the local Sheriff Court where the incapacitated adult lives asking to be appointed. The application must be accompanied by two medical reports and, when a welfare Guardianship is required, by a report from the Chief Social worker of the local authority.

The Sheriff will consider the application and take account any objections against the appointment. If satisfied, the Sheriff will appoint the individual as Guardian. The Sheriff will also set the period for which the Guardian will serve and detail the powers the Guardian can exercise. Usually, a Guardian is appointed for an initial period of three years.

Once the guardianship has been created, it is registered with the Office of the Public Guardian (Scotland) (OPG) and they will issue a certificate of appointment. The OPG will also inform the local authority and the Mental Welfare Commission of your appointment, in the case of a Welfare Guardianship.

If you would like further information on Guardianship, we invite you to read our article on Guardianship – what it is and how to avoid it.

Does a Guardian have power to sell and buy property?

If the adult with incapacity owns a house or other property, on appointment, the Sheriff may direct the Guardian to record the guardianship order against the title to the property with the Registers of Scotland. You may experience difficulties in selling the house in the future if the guardianship order is not registered.

Whether you can sell or buy property on behalf of the incapacitated adult will depend on whether the sheriff grants the Guardian power to sell or buy property. There may be very good reasons why the incapacitated adult’s property should be sold, and another property purchased. But the case must be put to the sheriff before the necessary powers are granted.

However, even if the sheriff has granted power to sell or buy property, before the Guardian can go ahead, the Guardian must apply for consent to the sale or purchase to the OPG. The Guardian must complete an application form and lodge it with a fee with the OPG. The OPG will then circulate the information to interested parties to allow for objections to be made. If an objection is received, it will be referred to the sheriff for a decision.

In the case of a sale, when offers are received, the Guardian must supply further information to the OPG. This information must include the following:

• The offer the Guardian wishes to accept;
• A current valuation of the property being sold (this could be the Home Report or an Estate Agency valuation);
• Details of any other offers received;
• Details of how and where the property was marketed;
• Confirmation from the Guardian, in writing, indicating their intention to accept the offer.

Once the OPG has received this information, if the sale is approved, they will issue a letter consenting to the sale. Again, the sale cannot proceed without this.

In the case of a purchase, the following should be sent to the OPG:

If the OPG approve the purchase, they will issue a letter confirming their consent. Again, the purchase cannot proceed without this.

If you are a Guardian looking for advice about a guardianship, whether it involves selling or buying property or not, please contact us.