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Patrick H.
Patrick H., Lawyer
Category: Australia Law
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Experience:  Dip Law LPAB - Sydney based lawyer
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Our parents are both 81 years of age, both should be living

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Our parents are both 81 years of age, both should be living in nursing homes, our father is currently in a home in a government funded bed. Our father wants to live in a home that requires a bond which means the marital home will need to be sold. As our mother is high level care, she can follow and be placed in the same home without a bond. Our mother though is adamant on staying in the marital home, she has two offspring out of ten supporting this idea. Our mother is long term schizophrenic and has dementia. These 2 offspring say that she has the right, by law, to remain in the house. Is that true? These offspring, my sisters, think it's acceptable to become her guardians, le' ave her in the house during the day on her own and see her in the mornings to administer medication and in the evenings and one of them has agreed to sleep there. Please advise if the house can be sold given her 'high level care' assessment which was done by a psychiatrist during her last stay in psychiatric care. Thank you, Sonja
Very likely, either because both your parents are on the title of the family home, or failing that, under family law principles, both parties are legally entitled to a share of the property.

That being the case if either party wishes to force the sale of the property they can in principle apply to the Supreme Court for orders allowing the property to be sold despite the objection of the other owner of the property.

The courts generally grant such applications to ensure that all owners of property can receive the benefits of their share of the property. So although if your mother (or her her attorney or financial guardian) may object and make things difficult, if the matter is pressed in court by your father (or his representative) then father should be able to force the sale.

Because the courts generally do order the sale, if a lawyer is engaged to press the case for a sale, those acting for your mother will likely receive legal advice that they have little prospect of fighting the matter in court, and therefore will likely be advised not to contest the application as it would be a waste of money. Hopefully, therefore, there should be no need for legal action.

I trust the above assists your understanding.

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Thank you and good luck.

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