How should a letting agent manage a tenant who lacks mental capacity?

The Mental Capacity Act 2005, which applies in England and Wales, says a person must be assumed to have capacity unless it is established that they lack it. They should not be treated as unable to decide until all practicable steps to help them have failed, or because they make an unwise decision. Anything done for someone who lacks capacity must be in their best interests and as unrestrictive as possible.

Capacity is about a particular decision at a particular time, it can be temporary, and it cannot be judged from age, appearance or a condition. So an agency should not mark a tenant as lacking capacity in general. Record who holds which authority, keep helping the tenant decide for themselves where they can, and let them keep their own access alongside anyone acting for them.

Each kind of authority covers different things:

• Property and financial affairs attorney: appointed under a lasting power of attorney (LPA), which can be used only once it is registered with the Office of the Public Guardian. It covers money, bills and property
• Enduring power of attorney: made before October 2007 and covering property and money. Once the donor loses capacity, the attorney must register it to keep using it
• Court of Protection deputy: appointed by a court order that says what they can and cannot do. A property and financial affairs deputy pays bills and manages money
• DWP appointee: deals only with the person's DWP benefits, making the claim and spending the benefit in their best interests
• Health and welfare attorney: decides on things like care and where the person lives, but can only make decisions about money if also appointed as a property and financial affairs attorney
• Someone helping with consent: a relative or friend the tenant has asked to help. Consent to share information is not authority to sign

Signing a tenancy needs formal authority. Court of Protection guidance from 2012 said that acting in someone's best interests does not extend to signing legal documents such as tenancy agreements, and that only an attorney under a registered LPA or enduring power, a deputy, or someone else authorised by the court can sign. The copy we found is marked withdrawn and we found no current replacement on GOV.UK, so confirm the position with a solicitor.

Check the authority before sharing anything, and keep a record of how:

• LPAs registered on or after 1 January 2016: the attorney creates an access code in the Use a lasting power of attorney service. It is 13 characters long, starts with V and lasts 50 days. The agency enters it with the donor's surname at View a lasting power of attorney, which shows whether the LPA is registered, who the attorneys are, how they must act and any restrictions. One code covers one LPA
• Older LPAs and enduring powers: the registered document, or a certified copy
• Deputies: the sealed court order, or an official copy
• Anyone: the Office of the Public Guardian will search its registers of attorneys and deputies on form OPG100, free, within 5 working days

Joint attorneys may have to act together, so note how the LPA says they must act. Set a review date, and stop sharing at once if the authority is revoked or ends.

Decide and record the lawful basis for sharing the tenant's information with each person, as the ICO expects. Notes about a tenant's health are special category data and need an extra condition: the Data Protection Act 2018 allows processing to protect an adult at risk when consent cannot be given, so keep safeguarding notes separate, restricted to the staff who need them, and out of any portal.

Our live lettings demo at lettings-demo.varsuite.co.uk shows one way to do this. A guardian portal lets a verified attorney or deputy see the tenant's rent, documents and repairs and sign on their behalf, with the signing record saying who signed and under which authority, and every action written to the tenant's audit trail. An appointee sees the rent account only, and nothing is shared until staff verify the authority. The rest of the features are on our letting agent software page. This is not legal advice.