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Massachusetts Agencies

Guardian: Powers Over Real Estate

Deeds and Conveyances: Special Rules Regarding Fiduciaries

A guardian, although having control over the person of the ward, is without authority to deal with the ward's real property without permission of the probate court (although he or she has the ability to deal with the ward's personal property without such a license). When dealing with the sale of real property a license is required. See Newhall, Settlement of Estates, The Lawyers Cooperative Publishing Company, (Fifth Edition, 1997), Section 35.33:

Personal Property. As to personal property, although she does not have the legal title, the guardian or conservator has nevertheless the right and power to sell and transfer it without any license from the court, and to use or invest the proceeds. Since, however, she assumes the risk of having a court later disapprove her course of action, the statute [G.L.c. 201, §47] provides a method by which she may obtain the authority and approval beforehand, although in ordinary cases there seems to be no urgent need of her doing so.

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Real Estate. In the matter of real estate, the situation is entirely different. A guardian or conservator without authority from the court, has no right to transfer or encumber the real estate of the ward. She may, however, upon petition, be licensed to sell, mortgage, or lease it as hereinafter explained. There are several different purposes for which she may be licensed to sell. (Citations omitted.)

During the guardianship, purchases of real property with use of the ward's funds should be taken in the ward's name, Brewster v. Seeger, 173 Mass.281 (1899), and sales of such property would equally require a license. Id:

The title to any new property acquired should be taken in the name of the ward. [The guardian's] power to transfer the property of her ward is in some respects greater than that of a trustee. It is substantially the same as that of an administrator.

In Newhall's treatise it is said in the above referenced section that, "In making sales or transfers [the guardian's] position is substantially that of a statutory agent. Accordingly, any sale or transfer should purport to be in the name of the ward, not of the guardian." This statement is not entirely accurate, and must be read in context. Although there is some authority for the statement, it must be noted that the statutory forms (Appendix to G.L.c. 183) indicate that in the case of a guardian's deed, it is from the guardian (i.e., the guardian is the grantor) with reference to the power conferred by the court, in the same form as an administrator's deed.