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Helping Someone With Dementia Sell the Home

Selling the home through guadrianship

Sometimes, a home must be sold, but the homeowner is no longer able to sign a listing or sale agreement due to cognitive impairment, confusion, advanced dementia or severe and persistent addiction issues (i.e., Wernicke-Korsakoff syndrome), or new onset dementia after recovering from COVID-19.  https://www.msn.com/en-us/health/medical/covid-19-pneumonia-increases-risk-of-dementia-study-says/ar-AAWpSwY,  Others may be temporarily incapacitated due to cardiac issues, surgery, or severe illness.  These conditions can prevent an adult from being temporarily or permanently able to make important financial, medical or legal decisions.  Adults who can no longer make decisions may be incapacitated.  And in real estate bubble with many residential properties reaching their peak value, it’s critical to act fast to accept the best home sale offer.

Unfortunately, incapacitated adults are unable to enter into a binding contract, such as an agreement to list or sell the home. When this happens, one option may be to use a general durable power of attorney or a real estate power of attorney to sell the home.  But that can only be successful where there is already a valid general durable power of attorney or real estate power of attorney in place.  If there is a power of attorney, and the homeowner is able to make decisions, the home cannot be sold through a power of attorney without the homeowner’s consent to the sale.  Giving a power of attorney to a trusted adult child or friend is like giving them an extra set of keys to the car. You can always take back the keys when you wish.

More to the point, a power of attorney is an important legal document by which the principal (i.e., the person signing the power of attorney) gives authority to an agent to carry out the affairs of the principal.  The catch-22 is that in order to make a power of attorney, the principal must have legal capacity.  Unfortunately, there are many incapacitated persons who never bothered to obtain a power of attorney before they lost capacity.   Another risk is that there may be a valid power of attorney, but the agent named may be deceased, very ill, or no longer available to serve.  Once again, there is no one with legal authority to sign the home sale agreement and the house cannot be sold even if there is a buyer.

The solution is to seek a court order for authority to sell the home.  This involves filing a lawsuit in the Superior Court for a judgment of incapacitation and award of guardianship.  The guardianship process is not a simple one. There are several different types of guardianships and the correct type must be selected.  Various court rules, required information and forms must be complied with.

The guardianship process requires doctor’s reports and an investigation into the finances and health of the alleged incapacitated person. As part of the process, the Superior Court judge appoints an independent attorney to investigate these matters and to write a report.  This attorney is referred to as the court-appointed attorney.  Often, that attorney’s report carries great weight with the court.  Testimony by the doctors may be waived, or if the guardianship is disputed, there may be an adversarial hearing.  If the evidence, any testimony and the court-appointed attorney’s report indicates that the alleged incapacitated person cannot make any significant decisions as to his person or property, then a plenary guardianship may be awarded.

But this is only the first step in obtaining court-authority to sell the home of the incapacitated person, who may urgently need the anticipated net home sale proceeds to pay for long-term care.  The next step is to file a motion with the court to sell the home through the guardianship.  The court can potentially award the requested order.  Only when such an order is in place, can the home be legally sold.

Not surprisingly, this process requires additional legal work and documentation.  The guardian must show that the proposed sale is fair and reasonable and in the “best interests” of the incapacitated person. In deciding whether this standard is satisfied, the judge may consider whether the incapacitated person will ever be able to return to the home to live there independently or with the assistance of paid caregivers, provided there are sufficient funds.  The fair market value and the tax-assessed value of the home will also be considered, as will the outcome of any prior attempts to sell the property, the cost of continued homeownership, and whether the anticipated net house sale proceeds are needed to pay for long-term care. In many cases, the home must be sold as a condition of Medicaid eligibility for the former homeowner in a nursing home.

This process takes time.   In limited cases where the safety of the alleged incapacitated person is endangered, or a very good purchase offer may be lost without swift court approval, the guardianship process can be expedited in New Jersey.

The bottom line, is that when capacity is in issue, selling the home a general durable power of attorney or a real estate power of attorney is much more efficient than through a guardianship. However, selling the home through a guardianship can be done in the difficult cases where there is no legal authority in place to sell the home.

Questions, or if you need help clearing title to sell a home through a guardianship? Let Jane know.

New Elder Justice Resources

black man covering face with hands
Photo by Nicola Barts on Pexes.com

Elder financial abuse involves the misuse of an elderly persons’s money, credit or property. Unfortunately, this is a growing and often unreported problem.

Fortunately, there are resources available to fight elder abuse. One is the statewide criminal referral hotline, found on the elder justice website of the New Jersey courts. Additional information and resources are available online at https://www.njcourts.gov/public/elder-justice.html.

Financial professionals, in particular, should remain alert for behavioral red flags of elder financial abuse. These can include:

  • new contact information for a financial account (address, email, or telephone)
  • unusual purchases or withdrawals on the account of someone who is cognitively impaired
  • an elderly person who seems withdrawn, anxious or afraid
  • an elderly person who cannot answer simple questions about her account activity
  • someone new taking great interest in the finances of an elderly person
  • repeated unsuccessful attempts to contact an elderly account holder
  • someone without proper identification trying to help an elderly person with bank or brokerage transactions

More information is contained in a government report to financial institutions found online at https://www.fincen.gov/sites/default/files/advisory/2022-06-15/FinCEN%20Advisory%20Elder%20Financial%20Exploitation%20FINAL%20508.pd.

What to Do if You Suspect Elder Abuse.

Your legal recourse may include criminal or civil prosecution, revoking a power of attorney, executing a new power of attorney and/or a guardianship or conservatorship. For strategies and solutions for your unique situation, contact Archer Brogan, LLP at https://archerbrogan.com

7 Tips to Effectively Communicate with Someone Who Has Dementia

Dealing with DimensiaSometimes, the world can look completely different depending on your vantage point. This past summer, national news reported that an eighty-seven-year-old cognitively impaired woman was brutally tazered in the chest, handcuffed and arrested for trespassing after wandering onto private property holding a knife near a local youth club to gather dandelions.  I suppose that this lady must have left her home that day with the notion of gathering flowers. I wish that I had the benefit of her perspective as the situation unfolded.

Some months ago, a local long term care facility put on a virtual dementia tour so that caregivers and elder care industry professionals could briefly experience the world through the vantage point of an individual with dementia. With mittens on their hands to simulate arthritis, inserts in their shoes to “experience” neuropathy, goggles dimming their vision, and incomprehensible sounds blasting throughout the tour causing frustration and confusion, the participants were given instructions to follow, instructions which made no sense. The experience helped me to appreciate how different our world looks to someone living with dementia and how very emotionally vulnerable they must feel.

Keeping their sensitivity in mind, here are some simple strategies to facilitate communications. The tips were generously shared by Angela Lunde of the Neurology Department of the Mayo Clinic in Rochester, Minnesota.

  1. Get down on it. Dementia can be accompanied by a decline in peripheral vision. How much would you understand and how would you feel if you could only see the torso of the person speaking to you? Kneel or sit beside the demented individual to get down to their eye level.
  2. Go slow. Individuals with dementia may process sounds at a slower speed and short term memory loss can impede their immediate recall. Pausing as you speak can help these individuals “catch up” and understand your words.
  3. Louder does not always mean clearer. Speaking in a loud voice can inadvertently escalate a difficult situation.
  4. Combine choice with control. Too many choices can be confusing. Give just two choices instead.
  5. Be inclusive. Dementia training should not be confined to long term care facilities, rehabilitation centers and hospitals. Our communities should work to reduce stigmas and train public service employees and business people on how to be “dementia friendly.” This is good for business and contributes to improved safety and quality of life for the cognitively impaired in the community.
  6. Keep it Light. Natural light, that is. Keep curtains and blinds open during the day. Watch out for distracting reflections from window panes and glare from artificial lighting and deep pools of bright light, especially on stairs and in bathrooms.
  7. Go Outside. Yes, your mother was right! Going outside to enjoy nature is good for you. Exposure to sunlight contributes to good sleep hygiene in setting your circadian rhythms and is linked in studies to decreased blood pressure. This is especially important for individuals ages forty-five to sixty-one, in light of a recent medical study associating mid-life hypertension with an increased risk of dementia, compared to those with no or low hypertension. Abell JG, Dugravot A, et al., European Heart Journal 2018; June 12.

For further information regarding dementia, additional dementia resources can be found online by visiting:

Questions? Let Jane know.

Jane Fearn-Zimmer is an Elder and Disability Law, Taxation, and Trusts and Estates attorney. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.