Dear Mr. Premack: I just read your answer to M.E., who wants to
sell the homestead after her husband had a stroke. He can’t sign, and you
told her how to use the power of attorney to accomplish the sale. My
husband is in the same situation though he has Alzheimer’s disease. I want
to sell the house because he is in a nursing home and I don’t need all
this space. But he never signed a power of attorney. Is there any other
way that I can sell the house regardless of the fact that he cannot sign
his name? – R.C.
When there is no durable power of attorney, the
disabled spouse has not voluntarily given any authority to the well
spouse. You are not his agent, and you cannot use that easy method to sell
the house. He did not take the time to make a power of attorney. It was
all too easy to think “bad things happen to other people, not to me” or “I
know I need to do this, but I’m just too busy right now”.
failed to preplan for a catastrophe, the entire burden sits on your
shoulders. You have two legal alternatives: Guardianship and Community
Administration. Both are court-based solutions that will take many hours
of time and cost many times what he would have paid a lawyer for
preparation of a durable power of attorney.
Guardianship is an
intensive, court supervised legal process. You must hire at least two
attorneys (your counsel and an “ad litem” attorney to represent your
husband’s interests), plus court costs. You must seek a court declaration
that your husband is incapacitated and ask the court to appoint you as his
Guardian. Upon approval by the court, you must post bond and must create a
public accounting of his assets, his income and his expenses.
the court names you as Guardian, you have the power to sell the house –
but it is also laced with much inconvenience. You cannot simply go sell
the house. You must first ask the court for permission to sell it. Once
granted, any offer you want to accept must be approved by the court. After
you sell, you must account to the court for the proceeds. Everything is
public and all of it requires the assistance of a lawyer.
Community administration starts out in court much like Guardianship but
since it can only be between spouses it does not require a bond. Unlike
Guardianship, you may not have to file an inventory, may not have to file
an annual accounting and do not have to obtain the Judge’s permission to
sell the community homestead.
While this procedure definitely
gets you authority to sell the house, and is somewhat simpler than
Guardianship, it imposes other legal duties on you. For instance: 1) Any
interested person with good grounds can ask the court to order you (the
“community administrator”) to file an inventory and accounting of the
community property. 2) If the Judge determines that it is appropriate, you
can be forced to file inventory, and may require you to file an accounting
any time after 15 months have passed. 3) The “ad litem” attorney can
demand an accounting which you’ll have to provide within 60 days of the
demand. 4) If you handle any lawsuit involving your spouse – including
filing for divorce from your spouse – you must report that court action to
the Judge who authorized the community administration.
Although you have little choice other than going to court to sell the
house, other readers are now forewarned. Avoid the courthouse whenever you
can. Decide in advance how you would want your business conducted if you
become incapacitated in the future. As discussed last week, one of your
choices is to be sure you have signed a durable power of attorney. Another
choice is to consider placing title to your homestead into a trust. We’ll
discuss the trust option in more detail in next week’s column.