There are instances wherein you have to step up & take care of your parents especially if they are in a state where they can no longer take care of themselves. If either one of your parents gets seriously ill, illnesses like dementia, you might end up selling their home to be able to pay for their needs. Here is what you need to know before listing your parent’s home on the market
Things to Know
If a parent or aging loved one suffers from dementia or any similar disease, he/she needs to identify someone to act on their behalf for the sale to take place. Also, according to Henry A. Carpenter II, Esq., the only person who can transfer the house to a buyer is the owner. Henry A. Carpenter II, Esq is a certified elder law attorney (CELA) from Bucks County Elder Law in Pennsylvania and a member of the National Academy of Elder Law Attorneys (NAELA)
A certified elder law attorney, Wesley E. Wright, with Texas-based Wright Abshire Attorneys, explained that “Even if they are a family member, if the caregiver has no legal authority [POA], then the caregiver has absolutely no right to sell the home. Period.”
POWER OF ATTORNEY
Selling a home is already a complicated process. Add Power of attorney into the mix and then you face an extra set of rules, paperwork & a lot of talking to do. The principal is the individual granting the power of attorney to someone else. The agent or attorney-in-fact is the person who receives the power of attorney to act on someone else’s behalf.
You can still be face problems even though a person has carefully prepared for the risks of such diseases as dementia, and has taken all legal measures. An example would be the title company rejecting the power of attorney. In some cases, they would doubt if the principal is qualified to sign a POA when they did.
Getting help from an elder law attorney, particularly the one who drafted the power of attorney, would be helpful in situations like this. Title companies & banks are known for being reluctant to work with agents & do not recognize POA’s even they are legitimate.
NO POWER OF ATTORNEY
If it was too late to make a request for power of attorney, the caregiver can petition for guardianship to sell the home. Subject to the terms of the guardianship, this also entails the legal authorization to sell the ward’s real property. Guardianship can be a lengthy, costly and emotional operation, however, and is only a viable choice in cases where an elder lacks the mental capacity to make rational decisions for themselves.
In most cases where a guardian wishes to sell their loved one’s home, they should appeal and ask for authorization of the court in each phase of the process. The restrictions & guidelines in selling the ward’s property should be written in the judgment or in the guardianship.
The contract should be signed first before a guardian seeks permission to sell the house and the contract with the buyer should state that it is still subject to approval by the court. The contract must be filed in the court along with the relevant details about the ward’s finances & care treatments. Once signed, it is up to the court to decide if the terms of sale are reasonable and if it is within the best interest of the ward. They may either approve or reject the contract.
One thing is for sure, it can be a rough journey for you and your aging loved one when selling their property, even if you have prepared and laid out everything. This blog is here to help you, BUT it is still best to seek legal advice from professionals. Do this hand in hand together with the other members of your family, and have the proper guidance that you would need.
At Encircle life we help our clients with challenges such as this every day. If you are facing difficult decisions and aren’t sure where to begin, call us today for a free, no-obligation consultation.
