Resolving Real Estate Problems for Incapacitated Property Owners
Families caring for an elderly relative suffering from a mental health condition often wish to sell the relative’s property. The desire to sell is often triggered by the discovery of a real estate problem. In some cases, the elderly person was the victim of a financial scam related to the property. In other cases, the property simply became too unwieldy to maintain. Families often run into barriers to selling the property or resolving a real estate problem when the owner is mentally incapacitated.
A person who is no longer competent to handle their legal affairs cannot nominate an attorney-in-fact no matter how serious a pending legal issue may be. A family member or other trusted person can sell the property only if the owner signed a power of attorney before the incapacitation. Without a prior power of attorney, the property cannot be sold by the mentally incapacitated person nor can the family sell on the owner’s behalf. The concerned family members become stuck in a situation where the incapacitated person is incompetent to sell and cannot sign a power of attorney for someone else to act on their behalf.
A legal case called a “guardianship” can create the solution to the family’s goals. A guardianship allows designated family members (or other approved person) to handle the legal affairs of the incapacitated parent. Once granted, the newly appointed guardian can make the health care and legal decisions for the incapacitated person. Courts will often split those responsibilities among two individuals – one to care for the person (Guardian of the Person) and one to handle the legal and financial affairs (Guardian of the Estate). A guardianship may take about three months to resolve depending on complexity of the case.
Both types of guardians have serious responsibilities and a duty to use the property for the benefit of the incapacitated person. There are also many pitfalls that can create serious legal problems even for guardians who are well intentioned.
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 by other parties to an agreement of sale..
2. Seek counsel for a guardianship. Guardianships can take several months to complete regardless of how urgent a real estate problem may be. Guardianships are highly technical and a single misstep can cause the guardianship to be denied.
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.
As a probate attorney to estate executors, I help families handle the legal problems facing an incapacitated loved one. If you know a family seeking information about a guardianship, please forward our contact information:
Phone (215) 918-4242
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