Legal Question in Real Estate Law in California

If I understand your question correctly, your mother wishes to place a reverve mortgage on your parents' home but your father does not have sufficient mental capacity to contract. If you mother ALREADY had a durable power of attorney from your father, the problem would be solved. Unfortunately, now that your father does not have the capacity to contract, it is no longer possible for her to obtain a durable POA from him.

In order to deal with your father's interest in the home now that he no longer has sufficient mental capacity to contract, your mother needs to petition the court to be appointed his legal conservator. You can find more information here:

http://www.courtinfo.ca.gov/selfhelp/seniors/

If he is not competent, he can't sign. In that case, she might need to obtain guardianship or conservatorship over him, to obtain the right to sign for him. Consult a local probate attorney.

Supplemental Answer: be careful about obtaining a reverse mortgage, especially if it is high pressured by a broker. They come at a high price with high interest rates, and hidden costs. You should review any proposals with an experienced real estate attorney to ensure against being 'ripped off'. There is a lot of that going around. They can be useful for the elderly, but make sure you know what you are getting into.

It's not possible to give reliable and in-depth advice without an opportunity to judge the porposed principal's competency in person; also, not knowing your time frame for taking out the reverse mortgage or the identity of the intended lender, I don't know whether you need a durable power of attorney, a regular power of attorney, or perhaps none at all.

Other than advising you to get a local attorney with elder law or estate-planning experience, I can suggest talking with your proposed lender - it is the one who will have to decide upon the validity of the power of attorney at the time of use, so if it done to their requirements there is a lot less likelihood that they will question it.

You may need to place your father under conservatorship. Contact me directly.