Tenancy agreements and adults who lack capacity: what councils need to know
A practical guide to lawful authority, common risks such as arrears after a move, and the steps professionals can take to protect vulnerable adults and reduce financial exposure.
At a glance
Tenancy agreements are legal contracts. A best interests decision alone does not give someone authority to sign or terminate one on another person's behalf.
Moving into care does not automatically end an existing tenancy. Rent may continue until the agreement is lawfully brought to an end.
A Court application may be needed where no attorney, deputy or other authorised person can make the required decision.
What this guide covers
This guide explains what councils and social care teams should check when an adult may lack capacity to enter into or end a tenancy agreement. It covers authority, evidence and the practical steps that help prevent unresolved rent liabilities.
The Mental Capacity Act and Court of Protection framework discussed here applies in England and Wales. The agreement must also be handled under the housing law that applies to it.
1) The problem we often see
A move into residential care can leave an existing tenancy unresolved. The care arrangements may be agreed, but nobody has checked who can give notice, sign a surrender or deal with the landlord on the person's behalf.
If the tenancy continues, rent can keep falling due even though the property is empty. At the start of a new placement, uncertainty about who can sign the agreement can also delay arrangements.
2) The legal and authority position
Begin with the particular decision the person needs to make. A diagnosis or difficulty managing other matters does not establish that they lack capacity to decide about a tenancy. Give them practical support to understand the decision before concluding that someone else must act.
Where the person lacks capacity, the proposed action must be in their best interests. The person carrying it out must also have the necessary authority. A decision about where someone should live does not, by itself, authorise another person to sign or terminate their tenancy.
When authority is needed
Check for a registered property and financial affairs LPA or EPA, a deputyship order, or a specific Court order. Read its scope and any restrictions before someone signs on the person's behalf.
Why this matters
A deputy can only act within the authority granted by their order. If the required decision falls outside it, further Court authority may be needed before the tenancy arrangements can proceed.
Involve the council's legal team where authority or the termination process is unclear. Check the correct notice or surrender requirements alongside the person's capacity and best interests.
3) Practical steps for professionals
Start these checks when a move is being considered, so that responsibility for the tenancy is clear before agreements need to be signed or ended.
1.
Confirm the specific tenancy decision and record the person's capacity to make it, including the support provided.
2.
Check for an attorney, deputy or existing Court order. Confirm that their authority covers the action required.
3.
Gather the tenancy agreement, rent statement, capacity evidence and relevant placement or safeguarding records.
4.
Confirm the appropriate legal route, identify who will take each action and keep the landlord, care team and relevant representatives informed.
4) Common questions
Can a best interests decision be used to end a tenancy agreement?
A best interests decision alone does not authorise another person to sign a surrender or give notice on the tenant's behalf. Check whether an attorney, deputy or person authorised by the Court has the necessary powers, and confirm the legal requirements for ending the particular agreement.
What evidence is typically needed for a Court application?
The evidence depends on the application. It commonly includes the agreement, rent information, capacity evidence, the proposed action and the reasons for it. For a new application, check the current COP1, COP3 and supporting form requirements. An existing deputy seeking additional authority should check the procedure for changing their order.
How can delays affect placements?
Uncertainty about signing authority can delay a new tenancy or placement arrangements. After a move, an unresolved former tenancy may continue to generate rent liabilities. Checking authority, notice requirements and the rent position early helps the teams involved identify what still needs to be done.
5) Next steps
If authority is unclear, bring together the tenancy agreement, capacity evidence, current rent position and details of anyone already appointed. Read about our tenancy agreement signing and termination service or speak to ILBP about the information needed for a referral.
Need to discuss a case?
Speak to our team about urgent situations, complex cases or which route may be appropriate.