Mom Is in Memory Care and Her House Sits Empty: How Does the Guardian Sell It?

Robert's situation: an empty house and a mortgage that doesn't pause for anyone

Robert is 60, lives in Sanford, and was appointed guardian of the property for his mother Helen after a court found she could no longer manage her own affairs. Helen now lives in memory care. Her house sits empty two counties away, the mortgage payment is still due on the first of every month, and the homeowner's insurance premium just renewed. Robert is a composite example, not an actual Truestead client, but his situation is one we see often: an adult child holding legal authority over a parent's finances, wondering how (and whether) he can sell a house that isn't legally his to sell on his own signature alone.

Florida guardianship is a court process under Chapter 744 that appoints someone to make decisions for a person a judge has found incapacitated, used only when less restrictive tools were unavailable or already tried. Robert has that authority for Helen's property. What he does not have, automatically, is the power to sign a deed and hand over the keys. That power has to come from the court, on a case-by-case basis, through a specific petition.

Step one: the petition for authority to sell

Before Robert can list Helen's house, he must file a petition asking the court's permission to sell it. Florida law requires the guardian to show the facts that make the sale expedient or necessary (an empty house, a mortgage in default risk, deteriorating condition, ongoing insurance and tax costs), along with a description of the property and, once he has one, the price and terms of the proposed sale.

The judge is not a rubber stamp here. The law directs the court to authorize a sale only if it is reasonable, just, and financially beneficial to Helen's estate. If Robert already has an accepted contract from a buyer, he typically includes that contract price in the petition itself, so the court can evaluate the actual deal, not just a general request to sell.

Step two: proving fair market value

The court needs independent evidence that the sale price is fair to Helen, not just convenient for Robert. In practice this usually means an appraisal or a broker's price opinion with a comparative market analysis. For higher-value homes, Florida guardianship procedure calls for more formal appraisal documentation before a sale of that size will be approved.

This step protects Helen twice over: it keeps Robert's decision-making transparent to the court, and it creates a paper trail if a family member later questions whether the house sold for what it was worth. Guardians are also barred from selling estate property to themselves, their spouse, or a business they have an interest in, unless that relationship was disclosed up front and separately approved by the court.

Step three: homestead status and Helen's rights

Helen's house may carry Florida's homestead protections, both the tax exemption and the constitutional restrictions on how homestead property can be devised or encumbered. Homestead status does not stop a guardian from selling the property under court order, but it changes what has to happen with the proceeds if a spouse is involved. If Helen were married and the home were owned by her and a spouse as an estate by the entirety, Florida law allows the court to direct that sale proceeds be reinvested in a new home for the ward and spouse, held the same way, rather than simply liquidated.

In Helen's case, as a widow with no spouse to protect, this provision doesn't come into play, but Robert's attorney still needs to confirm homestead status in the petition, because it affects both the tax consequences of the sale and how the order is drafted.

Step four: notice, the hearing, and the order

Once the petition and supporting appraisal are filed, interested persons, typically Helen's other heirs or next of kin, must be given notice and an opportunity to object. If no one objects and the judge is satisfied the price and terms are fair, the court signs an order authorizing Robert to sign the deed and close the sale on the specific terms described. That signed order is what a title company will require before insuring the transaction, so it has to exist before closing, not after.

The Medicaid question Robert needs to ask before he lists the house

Turning Helen's house into cash can change her eligibility picture if she is receiving or applying for Medicaid long-term care benefits. A homestead is often treated differently from countable liquid assets under Medicaid's asset rules, so converting a protected home into a bank account balance can push Helen over an asset limit she was previously under. This is exactly the kind of question that needs review by an elder law attorney before the petition is filed, not after the closing, because the sale order and the timing of the deposit can sometimes be structured to avoid an unwelcome benefits surprise.

Robert's six-week timeline

• Week 1: Robert's attorney orders a title search (confirming no lady bird deed exists) and requests an appraisal or broker's price opinion.
• Week 2: Attorney drafts and files the petition for authority to sell, describing the property, the empty-house carrying costs, and the appraised value.
• Week 3: Notice goes out to Helen's other children and any other interested persons; the clerk sets a hearing date.
• Week 4: Robert lists the property or presents an already-accepted contract; any objections from interested persons are addressed.
• Week 5: Hearing is held; if approved, the judge signs the order authorizing the sale on the stated terms.
• Week 6: Closing occurs, the deed is signed under the court's authority, and proceeds are wired into the guardianship account, to be reported in Robert's next annual accounting.

Real timelines vary by circuit and by how busy the probate division's docket is, but six weeks is a realistic target when the paperwork is clean and no one objects.

This article is for general informational purposes only and does not constitute legal advice, nor does reading it create an attorney-client relationship. Florida estate, elder, probate, and real estate law are fact-specific and change over time. Consult a licensed Florida attorney about your individual circumstances. Arthur Simpson, Esq. is licensed to practice law in the State of Florida. Attorney advertising.