Families usually find me after something hard has already happened. A parent has dementia and has moved into memory care. An adult sibling had a stroke and can’t manage money anymore. The house is empty, the bills keep coming, and someone says, “We need to sell it.” Then the question becomes who has the legal right to sign.
I’m Evan Weissman. I buy houses in Maryland, including houses owned by people who can no longer handle their own affairs. I’m not a lawyer, and guardianship is an area where you need one. This article explains the basic framework so you know what to ask.
Maryland’s terms: guardian of the property
Many states call this a conservatorship. Maryland’s statutes mostly use a different phrase: guardian of the property, found in Title 13 of the Estates and Trusts Article. There’s also a guardian of the person, who makes personal and medical decisions. Only a guardian of the property, or someone with similar court authority, manages the house and money.
Under ET 13-201(c), a court appoints a guardian of the property when it finds a person can’t manage their property and affairs effectively because of a disability or certain other conditions, and the person has property that needs proper management. Both parts have to be shown.
What appointment does to the title
ET 13-206 says the appointment and qualification of a guardian vests in the guardian title to the protected person’s property. The guardian has to use those powers in the interest of the protected person and their dependents.
ET 13-213 applies the general fiduciary powers in ET 15-102 to guardians. That’s the source of a guardian’s authority to manage, lease, or sell property. But the court that appointed the guardian also keeps broad power over the protected person’s property under ET 13-203.
Why the court order matters so much
In practice, the most important document is the order that appointed the guardian. Orders vary. Some limit what the guardian can do with real estate. Some require court approval before a sale, or ask the court to ratify it afterward. A guardian who sells without the authority the order requires can face real trouble, and the buyer’s title company won’t insure the deal.
So before listing the house or signing any contract:
- Read the appointment order closely, including any limits on real property.
- Ask the guardian’s attorney whether a petition for authority to sell, or a later ratification, is needed.
- Find out what the title company will require. It will usually want the order, proof the guardian qualified and is bonded if bond was required, and any sale authority.
- Plan for court time. If a petition is needed, it adds weeks to the timeline. Build that into any contract.
The bond and the accounting
Guardians of the property often have to post a bond, and they file reports with the court. When a house is sold, the proceeds become part of the protected person’s estate and show up in those reports. The court may also adjust the bond once the house becomes cash. Your attorney will know the filings your court expects.
Paying for care is often the reason
The most common reason I see for a guardianship sale is paying for care. Assisted living and nursing care are expensive, and the house may be the largest asset. Selling can turn it into money for care. Handling a guardianship sale on a Towson house? See my Towson, MD page.
That decision can affect benefits like Medicaid. The timing, the price, and how the proceeds are handled all matter. An elder law attorney can explain how a sale fits into a long-term care plan before anything is signed.
Disclosure in a guardianship sale
A guardian usually knows little about the house’s condition, especially if they never lived there. Maryland’s disclosure law takes that into account. Real Property Section 10-702 excludes a transfer by a fiduciary in the course of administering a guardianship, conservatorship, or trust from its disclosure and disclaimer requirement. Sharing what you do know is still wise.
If there’s no guardian yet
Sometimes the person can’t manage their affairs, but nobody has been appointed. A few things to check first:
- Is there a power of attorney? A durable power of attorney signed before the person lost capacity may let the agent sell the house without a guardianship. My article on power of attorney sales covers that.
- Is the house in a trust? If the house is in a revocable living trust, the successor trustee may be able to sell. See selling a house in a living trust.
- Is the house jointly owned? A co-owner can’t sell the other owner’s share alone, but how the house is titled affects what’s possible.
If none of those apply, a guardianship petition may be the only way to get authority to sell. The Maryland Judiciary has information on guardianship, and a lawyer can tell you how long it’s likely to take in your county.
How a sale to me works in this situation
When I buy from a guardian, I work around the court process. I can make an offer subject to court approval, give the attorney the information needed for the petition, and wait for the order before closing. I buy as is, so the guardian doesn’t have to manage repairs or a cleanout for someone who has moved to care. My page on selling a house as is explains the rest.
If the house would sell well on the open market, I’ll say so. Courts expect guardians to get fair value, and a listing can be the right call.
Does Maryland use conservatorship or guardianship?
Maryland’s statutes mainly use “guardian of the property” for someone appointed to manage another person’s property. Other states often call that role a conservator.
Does a guardian need court approval to sell a house in Maryland?
It depends on the appointment order and the court. Many guardians seek court authority or ratification before or after a sale. The guardian’s attorney should confirm.
Can a power of attorney be used instead of a guardianship?
Often, if a valid durable power of attorney was signed before the person lost capacity and it covers real estate.
Who receives the money from a guardianship sale?
The proceeds belong to the protected person and are managed by the guardian, subject to the court’s oversight and reporting rules.
Does the guardian have to fill out the disclosure form?
Generally no. RP 10-702 excludes transfers by a fiduciary in the course of administering a guardianship or conservatorship.
Talk through your situation
If you’re a guardian, or about to become one, and need to sell a family member’s house, call or text me at (410) 498-7473. I’m patient with court timelines and glad to coordinate with your attorney.