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Sunday, January 26, 2014

Grandparents are in a nursing home. Can the house be sold? Can the will be read?

When someone goes into a nursing home, can his or her home be sold by the kids? This is a question I hear frequently, both from the parents and from the kids. There is more involved in an answer to this question than a simple "yes" or "no". Recently a reader asked me about this, and about reading the will while the testators are still alive, and I thought I'd share the question and my response below.

"My grandparents are in a nursing home...can their house be sold before their death by one of their children? Was the will legally supposed to be read before death?"

The only way that anyone could sell your grandparents' home is to have proper legal authority to do so. There are two ways to obtain that legal authority. One is to be appointed in an enduring or continuing Power of Attorney document signed by the grandparents. This is only available where the grandparents both have mental capacity to sign the documents. The other is to be appointed as guardian and/or trustee by the court. This is only available where the grandparents do not have capacity to deal with legal documents.

Even with one of those two arrangements in place, there may be a restriction on selling of real property. In a Power of Attorney document, there should be a specific mention made of the ability to sell real estate. The land titles offices in some provinces will not accept a land transfer signed by a Power of Attorney without that specific authority in the document.

Similarly, when a person is appointed by the court to look after a parent's property, they may still need court permission to sell the home.

Assuming that all of the legalities have been followed and that the person selling the home has in fact been properly appointed, then yes the will should be read by that person. The right to do so is specifically given in some provinces' legislation. In fact, I believe that person has an obligation to read it. He or she should be aware of any gifts under the will so that he or she doesn't do anything to mess up the estate plan set out in the will.

For example, the house may be left to one of the kids under the will. In that case, the house should not be sold.

As another example, if the house is being sold, not all of the contents of the house are going to be moved to the nursing home, as there simply is not room for that. Something has to be done with those items. The person appointed is between a rock and a hard place, as storing the items may not be economically viable, yet he or she might land in trouble if he or she sold an item that is specifically gifted to someone under the will. While the best Power of Attorney documents will actually address this situation, most do not, leaving the named attorney to fend for himself or herself.

The person appointed should look at the will to see what the grandparents have said about who should receive their household items after their death.

You will note that here I have said that the person appointed under a Power of Attorney or court order should read the will. I have not said that the entire family should be advised of the will's contents, as it is none of their business while the grandparents are alive.

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