Incompetence: Overview

In order to be considered valid, the grantor of a deed or mortgagor of property must be of age and legally competent. The age of majority (or legal capability) varies by state. Traditionally, age 21 has been considered majority. Many states continue to adhere to their law. Some states have lowered majorities to 18 years. Likewise, a guardian or conservator must be appointed for any sale or other transfer of property for someone who has not reached the age of legal majority. Individuals who have not reached the age of majority (considered minors) or have been adjudicated by court order to be legally incompetent are considered to be under a legal disability thereby necessitating the court appointment of a guardian or conservator for any real property transaction involving such a person. Please note that having a physical handicap does not necessarily render a person incompetent. Court orders, with respect to sale encumbrance, or lease of real property of a minor or incompetent are necessary either for appointment of the conservator or court approval of transaction by a guardian


Generally, the powers of guardian - upon court approval - include the power to sell, mortgage, lease, or otherwise encumber said real property. However, in most states, such sale must be authorized or confirmed by the court. Title examination should include review of the certified petition for sale setting forth the reasons for said sale, mortgage or other contract; and whether the sale is private or public as well as the subsequent terms and conditions of the court orders approving said sale, mortgage, or lease. In states which have adopted the Uniform Probate Code, appointment of a conservator for a minor or incompetent person requires court involvement. The letters of conservatory must be examined for restrictions and must be recorded.