Conservatorship? Guardianship? What Do They Mean for Senior Deed Transfers?

For a lifelong couple, the day comes when one partner starts to focus intently on the well-being of the other. Before then, it’s important for a couple to document their plans and wishes. But how will they transfer the jointly held deed to their home, when one of them loses the capacity to do so?

This brings up new legal concepts for carrying out an impaired person’s best interests: the conservatorship and the guardianship. To be valid, either Letters of Conservatorship or Letters of Guardianship must be issued, bearing a judge’s signature.

First of All: Understand the Power of Attorney

Among the advance directives you’ll want to discuss as partners is a power of attorney (POA) for each of you. Your POA documents name agents who have the power of attorney to sell your property for you.

Create the POA documents before either partner loses capacity. Each of you, as mentally competent adults, can choose each other or someone else as your agent on your own document. It’s wise to name a secondary POA as a backup.

Now, the details. Powers of attorney come in several wrappers. So, you’ll both need to decide on the type of POA that suits your situations.

• A general (“non-durable”) POA gives an agent broad authority to act for a person (the “principal”) who can still make decisions. Its power stops upon a court finding of incapacity. The principal controls the agent’s authority. A principal may legally revoke and destroy the POA.

• A durable POA continues in effect even after the principal is incapacitated.

• A capacity-based POA is just as it sounds. With a springing POA, the agent can only act as and when the principal becomes incapacitated.

• The limited (“scope-based”) POA states specific situations or tasks an agent can carry out, whether for medical, financial, or estate planning contexts.

The limited POA is the most common form, and can be used for real estate transfers.

Legal Requirements for the Power of Attorney

The principal should consult a legal professional to ensure a correct, effective POA. Be sure both parties — agent and principal — sign the document in front of two adult witnesses. Your state may require notarization. Then the principal must file a copy with the county register of deeds.

Keep the original where it’s safe and the agent can easily get a hold of it when it’s needed. Financial POAs can be filed with the relevant bank, enabling the agent to deposit funds and sign forms when necessary.

You might not need a conservatorship if you have planned out a mutual power of attorney arrangement. Your attorney can help you document key planning points, such as who holds the power of attorney and backup roles, and the conservator/guardianship role if needed later.

Discussions about explicit instructions to the agent in a POA are important before one or both partners have diminished capacity. It’s wise to prepare for the legal journey early on, when both partners can speak firmly and knowingly about the way each would want their affairs to be handled.

What if you have an emergency and must sell promptly? Request an expedited court hearing. The petitioner and any other interested parties may want to get legal representation to protect what’s at stake for each of them. A judge may appoint a qualified, neutral person as a guardian ad litem (GAL) for the person needing protection. The GAL submits opinions to the court on the best interests of an incapacitated person.  

A Conservatorship: Court-Appointed (Sometimes Temporary) Protection

In a conservatorship, a court-appointed conservator handles someone else’s finances with powers beyond that of a POA. A conservatorship can end if the principal regains capacity to make contracts. A court determines who will be the conservator — often based on the input of the person who needs it.

To establish a conservatorship, the court signs off on the conservator’s authority to:

• Handle transfers of funds to cover the needs of another person.

• Manage taxes, debts, assets, and investments, and contractual agreements.

The conservator must go back to the court to get a go-ahead before making any extraordinary payments.

The conservator also submits an annual accounting, showing the court all steps taken in the name of the incapacitated person. This is typically called an Annual Report of Guardian of the Estate.

Important note: To avoid even the appearance of self-dealing or undue influence, the conservator should never transfer any interest to themselves without prior court approval.

Where to start? Consult an estate planning or family law attorney in the state. The consultation can provide a roadmap for the legal journey, and a conservator’s duties along the way.

The Guardianship: When One Partner Is Incapacitated

A guardianship is meant to represent and protect someone who cannot make legal, financial, or personal health decisions. A guardianship of property is similar to a conservatorship. Its specific focus involves payments and accounts.

A guardian is typically a spouse, partner, relative, or close friend. The guardian:

• Supports the protected person’s abilities. People with legal guardians have the right to be treated with dignity. As Pennsylvania’s court system notes: the person remains a unique individual who has interests, hopes, and dreams, that do not lose value or meaning because a guardian is appointed.

• Acts for the protected person, whether to handle health, housing, or finances. As allowed by state law, a guardian may sell joint property, after petitioning the court and getting the judge’s permission. In other words, a guardianship could permit the transfer of a jointly owned property. But you’ll need court approval to transfer a protected person’s interest in real estate.

Where to start? The county probate court has forms to fill out in order to submit a petition for the court-approved sale of the home. A reputable estate planning or family lawyer (in the state where the home exists) can guide you.

State laws differ. So, state-based due diligence is essential. This, of course, is true for any kind of deed transfer, whether legal competence is at issue or not. Deeds.com has up-to-date state forms to help you get started.

Checklist for Guardians Who Transfer Property Interests

Each situation is unique (both to the couple, and under the laws of the state), but certain steps are common. A guardian first creates an inventory of key documents (wills, trusts, deeds) and keys to the home. Then, the guardian will:

• Establish the court-ordered guardianship account. Through this bank account, a guardian handles funds on behalf of the protected person. To open it, you’ll need to bring original court documents to the branch manager (call ahead for an appointment). Also bring your photo ID, proof of address, and social security number, along with the incapacitated person’s birthdate and social security number.

• If the person under protection owns unoccupied property, have the insurance, utilities, and any related association fees set to submit regular payments. To avoid government liens, pay all property taxes.

• Notify the court and obtain approval for the home sale. Have a professional appraisal done; and plan for the removal of furniture and personal belongings.

As your attorney will explain, this is a carefully regulated process. Before carrying out any activities on behalf of an incapacitated person, expect to file a petition for court approval. Always keep careful track of your own expenses, to prepare for the accounting in court.

Key tip: If you are involved in establishing a guardianship, ask your attorney whether setting up a conservatorship to sell jointly owned property is also necessary, or whether the guardianship is enough. Understand how your guardianship document allows or limits your authority to make the most important decisions on behalf of your partner.

How the Deed Transfer Works: Sale of Property by the Guardian or Conservator

To transfer the deed, your lawyer will first draw up a petition. The court, upon finding the transfer appropriate, will authorize the deed transfer. A guardian or conservator needs a court order to sell (or make other financial decisions about) real estate for the protected person — unless the guardian or conservator is acting under express authority set out by the state’s law.

State-specific procedures for deed transfers under guardianship or conservatorship vary, but generally, the steps look like this:

• File the appraisal report with the court.

• File the petition to make the transaction, stating all details required by state law.

• Adhere to the court’s notice of hearing process, which may include personal and public notifications to anyone with an interest in the property.

• Attend the hearing and obtain the court order for the transaction, which includes an accurate and sufficient property description of the home.

Court requirements typically include your bond and your oath as a guardian and conservator. They also require you to execute the deed at a public or private sale as ordered by the judge, and confirmed by the judge post-sale. Finally, be sure the deed is recorded with the county.

Important Notes and Resources

Resources on guardianship and conservatorship are available from state and local court systems. Here’s a sample: the handbook for guardianship in Pennsylvania in portable document form. Educational videos are available, too.

Transferring a deed is only one task that agents might handle on behalf of their life partners. Your attorney can help you draft your roadmap. This website (or any website) cannot substitute for forming an attorney-client relationship for the purpose of professional legal advice. We can only offer common legal principles to orient our readers, and guide case-specific planning and questions in confidential discussions with the attorney of the reader’s choice.

So, begin by calling a trusted law firm. Many offer free initial consultations. You may also be able to find free or low-cost legal aid in your area for seniors.