Selling Property Where an Owner Lacks Capacity

Written by Richard O'Shea, Solicitor TEP · Mary Molloy Solicitors, established 1981 · Last reviewed 21 August 2026

First principle: nobody can sign for her without authority

Not a spouse, not the children acting unanimously, not the auctioneer's assurance that "it's done all the time". A contract or deed signed without lawful authority is a defect a purchaser's solicitor will find, and the sale fails at the worst moment. The question is never whether the family agrees — it's which legal route confers signing authority.

The routes

• An activated EPA with property powers — if the owner made an enduring power of attorney (or an old 1996-Act EPA) covering property, and it has been properly activated, the attorney can typically convey — within the instrument's terms, honouring will and preferences, and with care (and sometimes directions) around the family home
• A DMR order with the property decision included — the standard route where nothing was planned: a Circuit Court application seeking representation powers that expressly cover the sale, usually with the court's control over proceeds built in
• Specific court approval — the court's capacity jurisdiction can address a particular transaction, with the terms of sale and destination of proceeds supervised — the route where the sale is the whole need, or where an existing arrangement's scope falls short

The traps that sink sales

Going sale-agreed before authority exists — months of court process don't fit inside a purchaser's patience; sequence the application first, or agree realistic timelines. Orders that don't quite cover it — a DMR with "management of finances" but no express sale power; a wardship discharge order scoped for a world before the nursing home; check the words against the transaction before contracts. Joint ownership wrinkles — one capable co-owner cannot carry the other's signature. Proceeds without a plan — the court will want to know where the money goes (care costs, Fair Deal interactions, investment for the person's benefit); so should the family, before it's asked.

How we run these

Both halves under one roof: the capacity application (or EPA activation) and the conveyancing, sequenced so the authority exists when the contracts need it. Fixed quotes in writing for each stage, and a straight answer at the start about the realistic timeline — because the commonest damage in these cases is done by optimism.