2006-01-06 / Columnists


On Elderlaw Q & A On Issues Facing The Elderly
By Nancy J. Brady, RN, Esq. And Linda Faith Marshak, Esq.

On Elderlaw
Q & A On Issues Facing The Elderly

An important question concerning the elderly is one of property and the sale of property at an advanced age and in poor health.


Mrs. J from Rockaway Park writes: My husband was diagnosed with dementia and is now confused much of the time. I would like to sell our house but he cannot sign the papers at a closing.

My neighbor says I can sign his name. Is that true?


Mrs. J’s neighbor is under the common misconception: that with a marriage license comes a merging of the couple’s legal rights.

That is not the case in many instances and certainly is not the case with selling a home. What determines who must be able to sign a contract for the sale of property is the names on the deed, or more particularly, the property’s rightful owners.

For the purposes of this article let’s examine the most common ways ownership in property can be described on a deed:

“John Smith and Jane Smith, as tenants in common ” means that each named party owns one half interest in the property and on the death of the first party that one half interest will pass to the heirs of the deceased person and the other one half interest will be held by the other person named on the deed as well. So if John Smith dies, his heirs will own one half of the interest in the property and Jane Smith will own the other one half interest.

“John Smith and Jane Smith , as joint tenants , with the right of survivorship” means that when one person named on the deed dies, the other owns the entire property because the decedent’s one half automatically passes to the survivor.

So if John Smith dies, Jane Smith will own the entire interest in the property.

John Smith and Jane Smith, his wife, is ownership known as tenants by the entirety, ( this type of ownership is only as between a husband and wife), and when one dies the survivor owns the entire interest in the property.

So if John Smith dies, Jane Smith will own the entire interest in the property.

Notice though, that in all of the above examples, one of the parties died and then the property ownership passed to another person. When all parties are still living, as in the case of Mr. and Mrs. J, one owner may NOT sign for another owner or transfer ownership of a property without having been the legal authority to do so, even if they are married.

That authority must be given by a person with the mental capacity to do so by signing a STATUTORY POWER OF ATTORNEY document.

This document allows a named person (an agent) to act on behalf of another person (the principle) to perform certain specified acts or kinds of acts, like selling a home.

This document is what Mrs. J. would need to have from her husband, appointing her agent and therefore giving her the authority to sell their house.

Mr. J. has dementia, he no longer has the legal capacity to sign this form. The only alternative for Mrs. J. is to hire an attorney to petition the court to appoint a “guardian” for Mr. J. This time consuming and often expensive procedure can be avoided by having all legal documents prepared and executed in advance so that when unforeseen health issues arise, the POWER OF ATTORNEY document is signed and ready to be used.

Send any questions regarding estate planning, Medicaid planning, residential real estate sales or the handling of estates to Brady & Marshak, LLP at 257 Beach 116 Street, Rockaway Park, NY 11694, with your telephone number and we will do our best to answer as many questions as possible.

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