Q: I have an interesting situation. A wife was given guardianship over her husband. At some point in time, the wife resigned and her guardianship was terminated. After the guardianship was terminated, the wife got a mortgage on a property owned solely by husband. Is the mortgage void?

A: You should be asking this question of a real estate attorney, and you haven’t sent enough detail in your email to know for sure what is going on. But I’ll give you a short answer to your question with a couple of possibilities.

First, the mortgage may indeed be void, in that it was signed by someone who didn’t have an ownership interest in the property. However, if the wife did not have guardianship but held a power of attorney over the financial affairs of her husband, she might have been entitled to take out the mortgage.

On the other hand, this might also be considered mortgage fraud or theft, especially if the wife took cash out of the property after the guardianship was terminated and didn’t have a power of attorney. If she used the proceeds of the refinance for her own affairs to the detriment of her husband, she might have also crossed the line in what she could have or should have done.

If this issue involves a family member or friend, you should talk to a real estate attorney. Be prepared to answer how and why the guardianship was created. You should know whether the mortgage was taken out using a power of attorney. If you have a copy of the mortgage you should be able to determine in what capacity the wife signed the document. If she signed it as guardian but the guardianship was terminated, the mortgage company and title company that processed the paperwork might have been duped in not knowing that the guardianship was over. You will need to have the paperwork showing when and why the guardianship terminated. With all of this information, the attorney can give you a better answer.

April 3, 2009