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Written by Jonathan J. David Jonathan J. David

Dear Jonathan: I recently made the very sad but necessary decision to move my wife into a memory care unit at a local facility. Her dementia has progressed to a point where I can no longer care for her at home. Fortunately, I have the financial means to pay for her care in the nicest facility in town, where she will receive excellent care.

Now that my wife is no longer living here, there is no real reason for me to keep our home, so I would like to sell it and move into a condo. Since our home is titled in both of our names, what do I do when it comes time to close on the sale after I find a buyer? Can I sign all of the closing documents on my wife’s behalf since she no longer has the ability to do so? If not, what are my options?

 

Jonathan says: I am sorry to hear about your wife. It had to be very difficult for you to make the decision to transition her to a facility, as well as sell your marital home.

In answer to your question, you cannot sign the closing documents on your wife’s behalf without having legal authority to do so. That authority can come from one of two places:

 

A financial durable power of attorney – This allows the named agent to handle the disabled principal’s financial affairs when the principal is no longer able to handle those affairs on her own behalf.

If your wife, while she still had legal capacity, executed a financial durable power of attorney naming you as her agent and that instrument included a provision giving the agent the ability to sell real estate titled in the principal’s name, then you could sign the closing documents as her agent with that financial durable power of attorney.

 

A conservatorship – If your wife failed to execute a financial durable power of attorney, then your only other option is to have yourself appointed as your wife’s conservator through your local probate court or the court that handles these types of matters.

Once you are appointed, you can act for your wife regarding all of her financial matters, including signing the closing documents for the sale of your home.

 

Utilizing one of these options is the only way you will be able to sign documents on your wife’s behalf and close on the sale of your home.

You should consult with an estate planning attorney well ahead of the closing so that you can make a determination as to which option is available to you so that you can proceed with the sale of your home without any delays or roadblocks. Good luck.

 

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., 1700 E. Beltline N.E., Grand Rapids, MI 49525.