The baby boomer population is starting to hit that golden age at which dementia is an increasing concern. One in eight Americans over 65 has Alzheimer’s or another form of dementia. Yes, it’s a good idea to have an advanced health directive and a durable power of attorney—but those are really separate issues. What happens when one spouse starts the dissolution process, then becomes incompetent? What happens if a spouse wants a divorce after they become incompetent?
Recently on an online forum this situation was presented: a woman sees an attorney about a divorce, she tells everyone she is going to get a divorce, she and her husband separate, after which she is overcome with dementia. What should be done? Can family members complete the dissolution on her behalf?
First, there are provisions in the probate code that can force one spouse to provide for their counterpart. But what about the marriage? Can they get a divorce? Does the legal system respect their wish to be divorced?
In the recent case: In re the Marriage of Straczynski (2010) 116 Cal.App.4th 531, a woman’s conservator and guardian ad litem pursued a dissolution of marriage on her behalf. She expressed interest in divorcing, then later developed dementia. Whenever the husband came to visit her in an assisted living facility, she would hold his hand and tell him she loved him—forgetting she wanted a divorce, just months earlier. The lower court dismissed the action finding that 1) the divorce was not in her best interest, 2) that the judge didn’t “think there’s going to any evidence presented” allowing the court to find irreconcilable differences, and 3) the court “believed” there was case law indicating that no dissolution could be ordered if there was a conservator. The California Court of Appeal remanded with a heavy hand, finding the dismissal, “Was made without proper notice to the parties and without proper legal or evidentiary basis.” Ouch. Triple whammy. No notice, no legal basis, and no evidentiary basis. But, that’s not too surprising considering the judge pretty much said, I don’t like this and I think there’s some precedent out there somewhere against it—even though I have no idea what it is nor have I bothered to look it up. The tone the court of appeal takes when discussing the husband’s visits give one the impression that he was attempting to manipulate her feelings and possibly take advantage of her dementia.
The Legal Standard
In Straczynski, the Court of Appeal went on to describe the actual case law that the lower court should have cited, had it done its due diligence. See In re Marriage of Higgason (1973) 10 Cal.3d 476. The Higgason court found that a spouse under a conservatorship may bring a dissolution action through a guardian ad litem “provided it is established that the spouse is capable of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences and has done so.” Id. at 483.
Why This is All Really Stupid
Under Higgason, a conservatee can get divorced through their guardian ad litem, but they must have enough capacity to state they want a divorce and that there are irreconcilable differences. The trouble is that in order to need and have a conservator or guardian ad litem in the first place—a physician or mental health practitioner needs to have deemed this person physically or mentally incapable of caring for themselves. So the court is taking an impractical middle ground. If you have dementia and a guardian ad litem—that agent can pursue a divorce on your behalf, but only if you retain enough competence to remember that you want a divorce because of irreconcilable differences. You must be incompetent enough to need an agent, but competent enough to make a decision about your marriage and state why it didn’t work out.
The Higgason court didn’t say one way or the other, but in dicta, the Straczynski court says that if a conservatee retains this minimum capacity level at the start of proceedings, but loses it during the dissolution process—the court would have to dismiss the case. It interprets the Higgason court’s capacity requirement as one needed throughout the entire course of dissolution proceedings.
My guess is that with baby boomers aging and the number of Americans with dementia on the rise, this is going to be an issue revisited by the Court of Appeal or the California Supreme Court sometime soon. It would be better if the State Assembly could pass a new family code or probate code section that addressed this issue before that happens, but I doubt they will. In the meantime, if you start developing dementia and you want out of your marriage—you better get divorced quick before you forget.