What happens when residential real property must be sold, but the owner of the property can no longer make their own decisions? If there is no one authorized to sell the property under an existing power of attorney, the real property can be sold by a guardian. Selling real property through a guardianship requires two real estate appraisals and court approval. The touchstone is whether the proposed sale will be in the best interests of the incapacitated person. Factors for consideration include whether the incapacitated person can return to live in the home, the fair market and tax assessed values of the property, the marketability of the property, the outcome of any prior attempts to sell the property, the expenses of continued ownership, and whether a sale or liquidation agreement must be entered into as a condition of Medicaid eligibility. In limited cases where the safety of the alleged incapacitated person is endangered, the guardianship process can be expedited in New Jersey (and other states) through a temporary emergency guardianship order.
Questions? Let Jane know.
Jane Fearn-Zimmer is a shareholder in the Elder and Disability Law, Taxation, and Trusts and Estates Groups. 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.