I recently represented an elderly property owner who was sued for allegedly backing out of a real estate sale. My client resided in her home situated on a beautiful 40+ acre property her entire life. It is peaceful suburban farmland populated by many animals and containing a huge barn. The property was also a family home for more than 100 years.
My client was approached by a developer who wanted to acquire the property for development. One of the family members who sought to benefit from a sale engaged a realtor when the offered price was discovered. But my client could not sell – she was previously diagnosed with advanced dementia and memory loss. Despite the diagnosis, some of the family members misled my client and pressured her into signing an agreement of sale. Fortunately, other family members came to her aid and halted the sale. The developer filed a lawsuit to enforce the sale called a “specific performance” action.
A property owner who lacks mental capacity cannot sell a property no matter how urgent it may be to sell the property. I have represented very well intentioned families who want to save an elderly person’s property from various real estate problems. But if the property owner did not sign a power of attorney prior to becoming incapacitated, a guardianship must first be created.
Here are four tips for families of incapacitated property owners.
1. Do not attempt to sell an elderly person’s property if there is any question as to capacity. Doing so can open family members to lawsuits.
2. Seek counsel for a petition for a guardianship. Guardianships can take several months to complete regardless of how urgent a real estate problem may be.
3. If possible, prepare in advance for the onset of mental health issues.
4. Be on the lookout for scams and attempts to take control of the property.
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