Guardian wants to sell mom’s properties

Dear Mrs Macaulay,

The Florida court awarded my wife and I guardianship of my 84-year-old mother who has dementia. She owns properties in Jamaica. I would like to know, 1. What are the processes to dispose of (sell) these properties? 2. Can I transfer the properties into a named trust?

The answer to your second question is no. You cannot solely attempt to transfer the properties into a named trust. I am forced to add that you and your wife must act jointly always and make all decisions about your mother’s welfare and about her assets and properties TOGETHER, JOINTLY (capitals for emphasis!). Your wife has equal rights and equal obligations with you to meet the responsibilities and make decisions about all aspects of caring for your mother and for and over her assets and properties.

The answer to your first question about the processes to sell the properties, is that you and your wife cannot dispose of any of your mother’s real properties/immovable properties in Jamaica by virtue of an order made by a court in Florida, which is a state of a foreign/alien country, the United States of America. Judgements and orders made in foreign countries are not enforceable in Jamaica without being recognised in an Act of Parliament as being those which the parties wishing to enforce can apply to the Supreme Court for an order and the issue of a certificate that it is enforceable in Jamaica. A Florida court order cannot enable you and your wife to deal in any way with any real property in Jamaica.

You should obtain the services of a lawyer here in Jamaica to research whether the order obtained by you and your wife can be enforced here in Jamaica, as I have stated, pursuant to the Maintenance Orders (Facilities for Enforcement) Act or the Judgements (Foreign) (Reciprocal Enforcement) Act under which orders can be made by way of subsidiary legislation.

Then such a lawyer can assist you and your wife to prepare and file the application for your order of your appointment of guardianship made by the court in Florida, to the Supreme Court here, if it falls within the categories of acceptable orders to be accepted and certified. The court would not certify it, if it does not meet the legal requirements and standards for appointments of guardians within Jamaican law. If an application for the Supreme Court’s acceptance and certificate fails, you both would then have to apply from scratch here.

The lawyer you retain would advise you and your wife, if success of the above-stated application is not in the cards, to make an application here to be appointed as your mother’s guardian, and the Florida order may be used in support of the appointment, with medical evidence in a medical report of a duly qualified medical practitioner and affidavits of you and your wife of all necessary relevant facts about what is needed for your mother’s personal care, where this will be done, of the control and protection of her assets and real properties, and it would be advisable to seek directions/orders of the court as to yours and your wife’s powers to lease, receive rentals, sell or do whatever with her real properties and the income/monies therefrom.

If you both take this latter course of action and make the application here, you will save yourselves time as then you will only be pursuing one application. Anyway, your decision should be based on the result of the research about reciprocity of your order, which must be sent to the lawyer you retain, and it must have emanated from a superior court of the foreign state to be even considered.

You and your wife, acting together, will also have to have the acceptance and certificate of your Florida order in order to set up a legal trust for dealing with your mother’s real properties, as I have stated above. Or, under and pursuant to an order made here in the Supreme Court of Judicature of Jamaica on your application to be appointed as your mother’s representatives, you shall have power to protect her assets, monies and real properties.

I trust that I have clearly dealt with your questions. All the very best to you and your wife, and for your mother’s safety.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.