If she wants to have the husband declared incapable, then she will need to go to court and be declared his guardian (usually it is temporary guardianship, then a petition is made to grant permanent guardianship.) She would then be able to act on his behalf if she is granted as guardian of his estate. This will cost several thousand in attorney’s and court fees (including a case study made by the court on the proposed conservatee’s behalf).
…to sell the home if her husband is in a convalescent home and not aware of his surroundings? We live in California (SF Bay Area) and are getting ready to sign the contract. The wife has said that her attorney said that she can sign for the house since the title is in both of their names, without the husband having to sign. Is this true? Doesn’t she need to have power of attorney or something since her husband is still alive?
William Bronchick: Can you answer? - Posted by Tony (CA)
Posted by Tony (CA) on March 06, 2001 at 14:47:22:
Fran and I are working this deal together, and actually the wife has not spoken with an attorney, but feels that since she is paying the household bills, her husband is confined to a convalescent home, and the house is in both their names that she should be able to sell the house without his signature.
How can we help the seller obtain the necessary release forms and signature? We certainly would like to help her with the situation she?s in. The seller is most concerned with costs as she is desperately in need of money to pay her bills. Is it standard practice for an attorney, if one is necessary, to be paid by the seller’s proceeds at closing? Is using an attorney who specializes in real estate a good idea?
I would think that the fact that her husband is confined to a convalescent home would require that arrangements of this sort would need to be made already. Otherwise, how can convalescent homes keep people against their wills?
Re: Does the wife have the right…?( - Posted by Jeffers CT
Posted by Jeffers CT on March 06, 2001 at 13:22:43:
State laws vary, but around here, to be able to sign off, the Wife would have to be able to show paperwork deeming the hubby incompetent and therefore be able to get power of atty. Depending on his medical condition, some of this groundwork may have already been done to admit him to the convalescent home.
On the other hand, depending on their financial condition, the health organization and/ or medicare may already have “dibs” on the property.
Check with your atty.
She needs a durable power of attorney to perform the contract. FYI: Every husband and wife should have a durable power of attorney AND a will in place to cover the death or severe disablity of the other. Even if the house is in both names, if one of the two dies w/o a will, the property will have to probated and a probate fee based on the value of the home will have to be paid. This could amount to $10’s of thousands of dollars.
Her attorney is probably an elder care lawyer and not a real estate lawyer. Without knowing the specifics, such as the manner in which title is held (entireties, JTWROS, or tenants in common), and also not being personally acquainted with California laws, I could not answer the question as asked. I would suggest that if you have a real estate lawyer you use for closing and title work (maybe at a title company) you call and ask them. If they would be able to insure the title under these circumstances, it’s probably okay. If not, it’s not okay.