If a parent is in a care home, the parent can sell the family home if able to decide

Even after a parent enters a care home, the family home is still in the parent's name. Only the parent, as owner, can make a contract to sell it.

Civil Code Article 3-2 says: "If a party to a juridical act lacked legal capacity (the ability to understand the act) when expressing intent, the juridical act is void." In other words, a contract made by a person who cannot understand what they are doing has no effect. Even if you think you sold, the sale may later turn out to be void.

So when a parent cannot decide, a child cannot sell on the parent's behalf. This is true even if you hold the parent's registered seal or bankbook.

The first question is: "Can your parent decide to sell the house?" The path splits here.

If your parent understands what selling the home means and can decide, the parent signs the contract as the seller. Being in a care home does not prevent a sale.

Before the contract, you need to check directly that your parent wants to sell. The meeting is often at the care home, so ask the home about its visiting rules first to move things along. Please also ask us how to confirm your parent's wishes.

What children can do is help around the edges.

• Gather the home's documents, such as registration papers and property tax notices
• Set the visiting day with the care home
• Attend the signing
• Hold the house keys and show the house

Decision-making ability can weaken little by little. Once it has weakened, the parent can no longer sign the contract. If the family decides to sell, it is safer to move early.

If dementia or similar has weakened your parent's ability to decide and your parent cannot decide to sell the house, you file an "application to start guardianship" with the family court. The family court chooses an adult guardian (a person chosen by the family court to protect the property of someone whose ability to decide has weakened), and that person sells on the parent's behalf.

You file with the family court for your parent's (the person's) address. The people who can file include the person, a spouse, and relatives within the fourth degree of kinship (children, grandchildren, siblings, nephews and nieces, cousins and so on).

The cost is ¥800 in revenue stamps for the filing fee, ¥2,600 in revenue stamps for the registration fee, plus postage stamps. The postage amount differs by court. If a doctor's assessment of the person's decision-making ability is needed, the assessment fee is separate.

The family court chooses the adult guardian. Even if the family member who filed wants to be the guardian, that person is not always chosen. A professional such as a judicial scrivener may be chosen.

For the filing documents and procedure, see the family court's guidance or consult a judicial scrivener or lawyer.

Even after an adult guardian is chosen, the house cannot be sold right away. Selling the parent's residence requires the family court's permission.

Civil Code Article 859-3 says that for an adult guardian to sell, for example, "the building used as the person's residence or its site," the guardian "must obtain the permission of the family court." In other words, to sell the house and land where your parent lives, you must first get the court's consent.

A house the parent is not living in now because they are in a care home is also often treated as a "residence." The court's guidance says it includes a house where the person lived before entering a hospital or care home, though they do not live there now.

The adult guardian files this permission application with the family court that chose the guardian. The cost is ¥800 in revenue stamps plus postage stamps. For a sale, you attach materials showing the sale is necessary, such as a draft sales contract and an appraisal.

A sale made without permission is void. Even if you reach agreement with a buyer, do not sign the contract until the permission is granted.

Paying care home costs is one of the reasons you can state in the application to show the sale is necessary. The Nagoya Family Court's sample entry also gives an example of selling a house to pay a care home's entrance cost. But the family court decides whether to grant permission.

We provide the appraisal to attach to this application free of charge. We also take consultations from adult guardians.

The tax special rule you can use depends on when you sell. Which is better depends on the house's price, what was paid for it, and your family's situation, so we do not cover it here. For tax calculation and filing, please consult the tax office or a tax accountant.

When the parent sells while still alive. The ¥30 million deduction for selling a home you lived in (a rule that lets you subtract up to ¥30 million from your sale profit to reduce tax) may apply. For a house the parent no longer lives in after entering a care home, one condition is to sell by December 31 of the year three years after the day they stopped living there. It cannot be used when you sell to someone with a special relationship, such as a child or spouse.

When a child sells after the parent has died. The deduction for vacant houses may apply. It may also apply if the parent entered a care home after being certified as needing care (recognized as needing nursing care or support), provided the parent's belongings stayed in the house and nobody rented it out or lived in it afterward. The deadline is December 31 of the year three years after the inheritance began, and the sale must be made by December 31, 2027. There are also conditions such as the house having been built on or before May 31, 1981 and the sale price being ¥100 million or less, and with three or more heirs the limit is ¥20 million.

The two special rules count their deadlines differently. If the parent sells, you count from the day they stopped living there. If a child sells, you count from when the inheritance began. All the conditions are in the ¥30 million special deduction for vacant houses. For what to do after an inheritance and its deadlines, see what to do after inheriting a family home, and deadlines.

Until it is sold, the family home is a vacant house. In Toyama, Ishikawa and Hida, the biggest worries are snow on the roof in winter and water pipes freezing and bursting.

Who to ask for draining the pipes and removing snow from the roof is in the yearly calendar for managing a Toyama vacant house from outside the prefecture.

If snow or roof tiles fall from a vacant house and damage the neighbor's property, the owner can be held responsible. Even if the parent is in a care home, the parent still owns the house. What to do on the day is in who is responsible for damage to a neighbor from a vacant house.

If your parent can still decide for themselves, you can prepare ahead.

A voluntary guardianship contract (a contract, made while you can still decide alone, naming who will act for you in future and what they will do) is made as a notarial deed (a document drawn up by a notary at a notary office). When your parent starts to have trouble deciding alone, the family court chooses a supervisor of the voluntary guardian (a person who oversees the voluntary guardian's work), and only then does the contract take effect.

There is also family trust (a contract that entrusts the management of assets to a family member). It suits some families and not others, so please consult a judicial scrivener or lawyer.

About the house, it helps to ask your parent the following, so you are not unsure later.

• What they want done with the family altar and memorial tablets
• Household goods, photos and letters they want kept
• Whether they are happy to sell the house, or want someone to use it

What to avoid before you clear out the household goods is covered in selling an uncleared family home with the contents included.

Even if the children live outside the prefecture, things can move forward. With us, send photos and the location, and we will tell you a rough price. The contract can be handled by post, and we take the keys and check the house on site. In most cases you need not come home, or only once.

Whether the parent sells or the adult guardian sells, children living outside the prefecture can help with paperwork and handing over keys. The steps are in how to sell your family home without returning to Toyama.