Q: My father is 92 years old and has dementia. He has a lot of other physical ailments as well. I’ve been living with him in his home for the past five years and have cared for him all that time. I’m getting married next month and will be moving into my husband’s house and bringing my father to live with us. The bottom line is that we no longer need Dad’s home but could use the money from the sale to care for him. Dad no longer even knows who I am most of the time and I’m sure he can’t understand the legal documents that are involved with the sale of a house. How does someone in my position go about selling a home? I checked the public records and the house has been in my dad’s name alone ever since my mother died more than 10 years ago, and it’s entirely paid off. Thanks.
A: As you know, your father would not be considered competent to transact his own legal affairs, such as selling a house.
In order to sell the property, you will have to be appointed as the conservator for your father. This involves a court filing requesting permission from a judge to be appointed with the power to sell the house. It is tantamount to suing your father, though you’re clearly doing so for his own good.
Once you file your papers, the court will appoint an investigator who will most likely meet with your father and probably talk to his doctors as well. The investigator will then make a report to the judge with regard to your father’s ability to tend to his own affairs and whether or not the investigator believes you would be a good conservator.
If there are other family members or friends who want to become his conservator, they can come to court and ask the judge to appoint them instead of you.
There are two types of conservators.
You want to become the conservator of your father’s estate. In other words, you want to be in charge of his finances. The court can then give you authority to sell the property.
You may also want to consider becoming the conservator of his person. In other words, you would have authority over health care decisions, as well as where he lives.
You need to be aware that as the conservator of your father’s estate, you will be required to file accountings. In other words, you will have to keep track of all of his money and everything you spend it on. The money must be spent for the maintenance and care of your father. You can’t take a honeymoon to Hawaii with it.
The court will review and approve your accountings just to make sure the money is being spent on your father.
If this is something you still want to take on, you will need to contact an attorney. Becoming a conservator is fraught with legal pitfalls and you will need someone who is well versed in this area of the law to help guide you.
By the way, all of this could have been avoided had your father executed the proper power of attorney documents when he was still able to do so.
Typically, someone with a power of attorney can begin acting in the disabled person’s capacity once two doctors have verified that the people are unable to care for themselves.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at SolanoScene@TJones-Law.com.