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Can a House be Sold if Your Spouse is Incapacitated?

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The wife did not have a durable power of attorney authorizing her spouse to act as her agent in selling the property and now apparently lacked the capacity to sign one.

Can you complete a home sale if your spouse becomes incapacitated?

An elderly married couple wished to sell their home, but they had a big problem. The notary public refused to notarize the wife’s signature because she clearly did not understand the document she was being asked to sign. Because there was no power of attorney in place that could have authorized her husband to represent her, the transaction came to a halt.

This situation, as described in Lake Country News’ article “When one spouse becomes incapacitated,” is not uncommon. The couple needed to petition the court for an order authorizing the transaction. In Maryland, this would require a guardianship.

The request in Maryland requires the following:

The incapacitated spouse must have an examination by a two physicians, and a capacity evaluation form must be filed with the court. This is the same as a conservator proceeding.

The court must appoint an attorney to do an investigation and to represent the incapacitated spouse’s interests. That person must then file a written report with their recommendation to the court.

Next, a hearing is held to determine if the person is disabled and who should handle the assets.

The transactions must also be for one of several allowed purposes, including the best interests of the spouses or their estates, or for the care or support of either spouse.

In the example that starts this article, the purpose was to authorize the sale of the couple’s home so that they could move out of state to live with their children. Another example could be to transfer property so an incapacitated spouse could become eligible for government benefits.

Finally, the notice of hearing and a copy of the petition must be served on all the incapacitated spouse’s children and grandchildren. Any of these individuals are permitted to object and could set the proceedings back months or even years.

In any trial proceeding, there are significant costs and delays.

How much easier would it be to simply meet with an estate planning attorney long before there are any health or mental capacity issues and have a power of attorney document created for each of the spouses?

Speak with an experienced estate planning attorney to have your estate plan, which includes the power of attorney document, and have all these important documents created before you need them.

Reference: Lake Country News (July 27, 2019) “When one spouse becomes incapacitated”