Can you exchange even if the co-owner has dementia?

kawoh

Hi all - wondering if any experts can help me please.

I am being pushed to exchange contracts and I am not sure whether I can possibly exchange. I will speak to my lawyer tomorrow but i'd like to know:

Can you exchange contracts even if one of the co-owners has dementia and is unable to sign with a legal capacity? Note: i have been told that it will still take 2-26 weeks in order to get an order from the court to allow a trustee to act on behalf of the co-owner with dementia.

I didn't think this is possible, but because i'm in a contract race, I guess the other buyer may do something stupid and exchange? (or is this just a ploy from the real estate agent?) I think it's relatively clean cut, it's a YES or NO.

G_M

I'm not clear if you are buying or selling, and if the individual with dementia is co-owner with yourself, or the 'other side'?

If co-owner with yourself, why on earth have you got this far without addressing the issue?

If co-owner is on the other side, how do you know they have dementia? Are you a doctor? Have you seen medical/legal documentation to that effect?

However, if as you say "one of the co-owners has dementia and is unable to sign with a legal capacity?" then, no, clearly, that co-owner cannot sign so you'll need a trustee. If that means waiting, then that's waht you must do.

the other buyer may do something stupid and exchange?

What 'other buyer'? They(whoever they are) can only Exchange if you agree. If you/your lawyer have evidence that one of the signatories is "unable to sign with a legal capacity? " then clearly you refuse to Exchange. So back to my earlier Q: how do you know they have dementia?

Stewd18

It appears from your post that you are attempting to buy and you know one of the co-owners has dementia.

The co-owner has no legal capacity to sign the document and their solicitor should not accept the signed sale contract as valid. The court will need to provide someone with power of attorney as a trustee to sign on their behalf.

Without this then you risk not taking effective title of the property. The other buyer may think this is an acceptable risk to take but if you are doing this with the aid of a mortgage from a bank then your own solicitor will not exchange contracts if they know it has not been validily executed.

kawoh

I am purchasing a property, where I am told by the real estate agent that one of the owners has dementia (and have seen it for myself) and they are trying to progress getting rights for him to sign over the property through the office of public guardianship.

For this same property, I am also in a contract race, there is another buyer who also wants to buy this property. From what i'm told by the real estate agent they are desperate and want to be able to exchange as soon as possible (the competing buyer received contracts 2 days ago and now appears ready to exchange., has the deposit money and will get mortgages, etc sorted AFTER exchange, such is their desperation I am led to believe....).

What i'm not clear on is: Can the vendor's solicitor even allow a contract to be exchanged when one of the co-owners is not a fit state of mind to sign? If this is the case, then it negates the desperation of a contract race, at least for the time being, because exchange just can't legally happen. An exchange that is, which is legally enforceable (ie they can force me to complete if for example i find an issue with the survey, bank declines to mortgage after valuation, etc).

Stewd18, you mention 'not taking legal title'. Will any lawyer even consider this? I mean the vendor's lawyers or my lawyers? In order for a contract to be valid, in my understanding of contract law, you need a capacity to contract and those parties involved to have an intention to be legally bound. If one of the co-owners has dementia, how can this happen without that right being vested either through grant or power of attorney?

Regarding my own property - this is under offer and I plan to exchange on the property i'm buying before i'm exchanging on the property i'm selling. This is a risk i'm prepared to take.

kawoh

G_M wrote: »

I'm not clear if you are buying or selling, and if the individual with dementia is co-owner with yourself, or the 'other side'?

If co-owner with yourself, why on earth have you got this far without addressing the issue?

If co-owner is on the other side, how do you know they have dementia? Are you a doctor? Have you seen medical/legal documentation to that effect?

However, if as you say "one of the co-owners has dementia and is unable to sign with a legal capacity?" then, no, clearly, that co-owner cannot sign so you'll need a trustee. If that means waiting, then that's waht you must do.


What 'other buyer'? They(whoever they are) can only Exchange if you agree. If you/your lawyer have evidence that one of the signatories is "unable to sign with a legal capacity? " then clearly you refuse to Exchange. So back to my earlier Q: how do you know they have dementia?

1. I am buying.

2. I have seen the co-owner when I viewed the property. I am also told this from the vendor's solicitor and the real estate agent.

3. OK, if it means I wait. But my concern is can the vendor's solicitor still exchange with the competitiing buyer without the trustee? I'm 99% sure you can't.. but people do strange things in order to buy properties (ie the other buyer who is racing to exchange before me).

4. Other buyer - is a competing buyer who wants to buy this property i'm trying to buy as well. They have been issued contracts as well. None of this is related to the sale of my property.

googler

"they are trying to progress getting rights for him to sign over the property through the office of public guardianship."

Unless they set this process in motion before the onset of dementia, then they're on a hiding to nothing.

Getting standard Power of Attorney from the OPG requires that the 'donor' should sign at a time of being of sound mind, and unless two separate witnesses confirm this, the PoA has to be coutersigned by a qualified physician confirming the soundness of mind. Unless there's another process they're going through....

kawoh

googler wrote: »

"they are trying to progress getting rights for him to sign over the property through the office of public guardianship."

Unless they set this process in motion before the onset of dementia, then they're on a hiding to nothing.

Getting standard Power of Attorney from the OPG requires that the 'donor' should sign at a time of being of sound mind, and unless two separate witnesses confirm this, the PoA has to be coutersigned by a qualified physician confirming the soundness of mind. Unless there's another process they're going through....

The co-owner is not of a sound state of mind. You are correct, the certification of not being sound of mind occured by a physician I am told late last week/on Monday. My lawyer told me there appears some other way to get this now that the onset of dementia has begun other than the office of public guardianship.

The real estate agent told me yesterday this 'right to sell' can take 2-26 weeks..... Again, this doesn't bother me, but given these circumstances, can exchange still occur??? (i don' tthink so...., but again, the other buyer who is desperate to get this property may attempt to do this....i want to allay this fear...)

belisha-beacon

googler wrote: »

"they are trying to progress getting rights for him to sign over the property through the office of public guardianship."

Unless they set this process in motion before the onset of dementia, then they're on a hiding to nothing.

Getting standard Power of Attorney from the OPG requires that the 'donor' should sign at a time of being of sound mind, and unless two separate witnesses confirm this, the PoA has to be coutersigned by a qualified physician confirming the soundness of mind. Unless there's another process they're going through....

Googler, there is another process so the buyer does not have to worry about that. Power of Attorney can't be given unless the person is of sound mind to confirm that they want that, but in cases where someone is unable to give their consent to it then the courts have the power to appoint a Guardian who will act in the best interests of the person. This could be a family member or it might be someone appointed by the court. Because of the issues of ensuring that the person really can't decide for themselves, and the time it takes to find and appoint a suitable guardian, it does take longer than Power of Attorney to arrange, though.

G_M

the other buyer who is desperate to get this property may attempt to do this....i want to allay this fear...)

Well, a) then other buyer may be willing to take the risk of Exchanging and b)the solicitors involved also may take the risk.
but it's a huge risk. The buyer may end up with a purchase that is overturned because the seller (one of them) was not capable of signing (forged/co-ursed signature?).

That's the same risk you face. Are you willing to take it just to win a contract race with an idiot who is willing to take it?

Stewd18

kawoh wrote: »

I am purchasing a property, where I am told by the real estate agent that one of the owners has dementia (and have seen it for myself) and they are trying to progress getting rights for him to sign over the property through the office of public guardianship.


What i'm not clear on is: Can the vendor's solicitor even allow a contract to be exchanged when one of the co-owners is not a fit state of mind to sign? If this is the case, then it negates the desperation of a contract race, at least for the time being, because exchange just can't legally happen. An exchange that is, which is legally enforceable (ie they can force me to complete if for example i find an issue with the survey, bank declines to mortgage after valuation, etc).

Stewd18, you mention 'not taking legal title'. Will any lawyer even consider this? I mean the vendor's lawyers or my lawyers? In order for a contract to be valid, in my understanding of contract law, you need a capacity to contract and those parties involved to have an intention to be legally bound. If one of the co-owners has dementia, how can this happen without that right being vested either through grant or power of attorney?

.

I hadn't realised that it was the vendor's solicitor that had told you that the co-owner had dementia. In this case the vendor's solicitor cannot possibly exchange as they have the knowledge that their client does not have the capacity (nor arguably the intention) to create a legal argreement. No solicitor worth their practicing certificate would take instruction without the court appointed power of attorney in place. They would potentially be involved in a fraudulent transaction otherwise.

kawoh

Stewd18 wrote: »

I hadn't realised that it was the vendor's solicitor that had told you that the co-owner had dementia. In this case the vendor's solicitor cannot possibly exchange as they have the knowledge that their client does not have the capacity (nor arguably the intention) to create a legal argreement. No solicitor worth their practicing certificate would take instruction without the court appointed power of attorney in place. They would potentially be involved in a fraudulent transaction otherwise.

Well looks like some exchange or something surmounting to an exchange HAS occured.

I'm out of the race.

I have absolutely no idea how this has happened, but i've lost the property.