Many people find themselves in the challenging position of having to sell a loved one’s home to pay for that person’s medical care. While this is a difficult ordeal regardless of your loved one’s condition, selling a home becomes even more complex if a loved one is suffering from dementia or mentally incapacitated. To better prepare individuals who find themselves in such a situation, the following reviews critical details that caregivers should appreciate before taking steps to sell their loved one’s home.
Can a Person With Dementia Sell Their Home?
Only the individual who owns a home can transfer the house to a buyer. If an elderly person has become incapacitated, that individual must appoint someone else through the terms of a durable power of attorney document to act on the individual’s behalf before a sale can occur. If a caregiver or family member has no legal authority through the proper estate planning tools to do so, this individual cannot sell the home.
Selling a Parent’s Home When You Have Power of Attorney
The authorizations in a power of attorney document distinguish what a person can and cannot do. Many financial power of attorney documents grant an agent the broad power to act on behalf of someone, which includes issues involving the sale of property. Even if a person plans for the possibility of becoming incapacitated, however, issues can still arise when it comes to implementing power of attorney. One common issue is that title companies will question whether a person was competent at the time that he or she signed a power of attorney document. Other times, a title company might argue that a power of attorney document is too old.
What to Do if You Do Not Have Power of Attorney
If no durable power of attorney exists and your loved one is incompetent and unable to execute such a document, you must petition for guardianship to sell the home. Petition for guardianship requires certifying that your loved one is incapacitated and would benefit from a guardian being appointed to manage his or her property. Guardianship is a time-consuming and costly process, however, and is often only ever used as a last resort. Additionally, most times when a guardian wants to sell the loved one’s property, the court must approve each step of the process. Guardians also cannot petition the court for approval to sell the property until a signed sales contract is executed. A contract with the buyer should almost always include a statement that the document is subject to court approval.
Speak With an Experienced Estate Planning Attorney
If you need to sell a loved one’s home, it helps to anticipate some challenging legal situations, even if you and your loved ones have handled everything correctly. One of the best things to do if you find yourself in such a situation is to retain the assistance of an experienced estate planning attorney. Contact attorney Jim A Lyon today for assistance.