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”.
Since he 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.
Once 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.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, December 19, 2011