My mother has dementia. Can we sell my parents’ three homes?

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By Julie Cazzin with Ed Olkovich

Q: My mother is 89 years old and has dementia, but my father is fully functioning. Both my mother and father are on the title of the three properties they own together. Can my father, along with my sister and myself (who both have power of attorney for my mother), sell any of these properties? We’d like to divest of these before my dad goes into a retirement home. If so, what’s the best way of doing this? Secondly, if both my parents die, can the properties be sold before receiving probate? If so, how would this be done? — Ivana in Halifax

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FP Answers: Ivana, your questions are multilayered, but common for attorneys helping their clients’ parents. Your parents need to consult with their own financial adviser and experienced estate lawyer. Finding these qualified professionals may be challenging and your parents may technically need separate lawyers. They will also need to budget for future care costs.

I am an Ontario estate lawyer and can’t comment on the laws of your province. You need local legal advice to confirm if the power of attorney (POA) document allows you and your co-attorney to sell property jointly or individually. This advice will confirm if your mother’s power of attorney is legally valid. Restrictions can be imposed by local laws or specifics in your mother’s document. You may not be able to dispose of assets that your mother gifts in her will without special considerations.

Acting as your mother’s attorney makes you a fiduciary. The law requires you to act with honesty and to keep all financial records. Attorneys hold positions of trust, but may, in your province, also charge a fee. As an attorney, you must avoid any conflicts of interest, and put your mother’s well-being ahead of everything.

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If your mother is diagnosed with dementia, this does not mean that she is incapable. A POA may be effective immediately upon signing or require a triggering event to become operational, such as a diagnosis of incapacity. If a finding of incapacity is needed, your lawyer can help you satisfy this requirement.

The sale of any property may require your father’s consent. He may wish to update his will, and may need help with his family law rights, debts and income taxes. Any property sale proceeds can be subject to a division between your parents based on any written agreement or local family law.

Your parents may have obligations to support each other. Your mother’s financial resources might not be distributed except by court order or until she passes away and her will becomes effective.

You have not identified if these properties are commercial, rental, residential or recreational. Your parents’ personal residence would not likely be sold if your father resides there. You should consult with your father and his lawyer before selling any real estate.

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You do not mention your father’s age, but asked if it would be possible to divest the properties before he goes into a retirement home. Normally, income tax and carrying costs must be considered before selling any property. Financial advisers can help you figure out how the funds can be invested after costs are deducted.

Finally, your second question is about selling the properties without probate. This should be answered by your parents’ estate lawyer.

Edward Olkovich is an Ontario lawyer at MrWills.com. He is also certified by the Law Society of Ontario as a specialist in Estates and Trusts Law. This information is not a substitute for legal advice.

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