Can a Conservator Sell Real Property?
Navigating the complexities of a conservatorship in Oklahoma can be a detailed process, especially when it involves selling real property. Whether you’re managing the affairs of an elderly loved one, an individual with a disability, or someone facing mental health challenges, conservatorship sale of real property involves multiple legal steps and court approvals. An experienced probate attorney can explain more about conservatorship and help guide you through the steps.
What Is a Conservatorship?
A conservatorship is a legal arrangement where a court appoints an individual or organization (the conservator) to manage the affairs of someone who is unable to do so themselves. It’s done when the person (referred to as the conservatee) is incapacitated due to age, physical illness, mental illness, or disability and can’t make informed decisions about their well-being.
The decisions a conservator can make depends on the type of conservatorship established:
- Conservatorship of the person: The conservator can make decisions about the conservatee’s healthcare, living arrangements, and daily care, and is responsible for ensuring their safety.
- Conservatorship of the estate: The conservator manages the conservatee’s financial affairs. They keep records and can handle investments, pay debts and taxes, and create a budget.
- Limited conservatorship: If the conservatee has some ability to manage their own affairs, they can retain certain rights and decision-making powers while the conservator is granted authority over specific areas outlined by the court.
Conservatorships are generally seen as a last resort. Courts prefer alternatives like powers of attorney or guardianship before resorting to conservatorship.
How Does a Conservatorship Work?
Conservatorships are designed to protect the well-being of the conservatee while respecting their dignity and autonomy as much as possible. When a conservatorship is necessary, the court carefully monitors the arrangement to ensure the conservatee’s needs are being met.
Establishing a conservatorship can be complex, and requires the involvement of family members, medical professionals, and the court. Here’s how the process typically works:
- Filing the petition: Typically, a family member or close friend files a petition with the court requesting to become the conservator and outlining why the conservatee is unable to manage their own affairs.
- Evaluating the disabled person: The court will order an evaluation that involves professional medical and psychological assessments.
- Disputing the conservatorship: All family members and the person who may become the conservatee have the right to dispute the conservatorship or the proposed conservator at a court hearing.
- Appointing a conservator: If the court finds that the conservatee is indeed unable to manage their own affairs, they’ll approve the conservatorship and appoint a conservator. It’s often the petitioner, but it can be another relative, a professional fiduciary, or a public guardian.
Once a conservatorship is established, the conservator must regularly report to the court, providing updates on the conservatee's condition and the management of their affairs. The court retains oversight to ensure the conservatee's needs are met and to prevent abuse.
Why Would Someone Need a Conservatorship?
Conservatorships are for individuals who can no longer manage their personal, financial, or medical affairs, for example, due to:
- Physical disabilities, such as paralysis, advanced neurological disorders, or traumatic brain injury (TBI)
- Cognitive decline, such as Alzheimer's disease or other forms of dementia
- Mental health conditions, such as schizophrenia, bipolar disorder, or major depressive disorder
- Developmental disabilities, such as Down syndrome or autism spectrum disorder
- Chronic substance abuse that severely impairs judgment
To gain conservatorship, the petitioner must meet the court's burden of proof by demonstrating that the individual's mental or physical condition significantly impairs their ability to make sound decisions.
What Can a Conservator Do?
A conservator is legally required to act in the best interest of the conservatee. They must provide for their needs and ensure their safety, as well as the conservatee’s spouse and dependents. In order to do this, they can:
- Apply for assistance, services, and benefits
- Approve and withhold contracts
- Make gifts and appointments
- Create revocable and irrevocable trusts
- Deal with the conservatee’s interests in property
- Change the beneficiaries of life insurance or financial accounts
- Create, amend, or revoke the conservatee’s will
You can see that conservators have the freedom to make a lot of decisions for the conservatee, including selling property, which we’ll go into next.
Can a Conservator Sell Real Property?
Yes, the sale of real property under conservatorship is allowed if it will benefit the conservatee, for example by providing funds for their medical care, or if the conservatee needs to move into assisted living. However, the conservator needs to follow a specific process:
- Court approval: The conservator must file a petition with the probate court seeking permission to sell the conservatee’s property. Interested parties can attend a hearing if they object. If the judge approves the sale, they’ll issue an authorization order.
- Appraisal: The property is appraised to determine its fair market value. The conservator will have to get at least two appraisals from “disinterested parties” who aren’t connected to someone who would benefit from the transaction. The appraisal report is then submitted to the court.
- Purchase order sign-off: After selecting an offer on the property, the conservator submits the purchase agreement to the court for approval. The court reviews the terms and issues an order allowing the conservator to finalize the sale.
- Transfer of property: The conservator closes the sale and issues the deed to transfer the property. The sale proceeds are then deposited into the conservatee’s estate, and a final report is submitted to the court.
Get Help with Your Conservatorship Sale of Real Property
Conservatorships must always serve the best interests of the conservatee. That’s why the process to sell real property under a conservatorship can be complex. Hiring an attorney who’s experienced with the probate process and conservatorships can help streamline the process. Contact Plan Ahead Legal to move forward with your sale, so you can get the funds you need to help your conservatee, faster.