When a person becomes incapacitated due to trauma or disease, they also become vulnerable to being taken advantage of by less-than-ethical people. In some cases, adult children or other family members of mentally incapacitated individuals may want to initiate divorce proceedings to prevent or end abuse of the incapacitated person by competent spouses. Unfortunately, this may not always be possible. Here's more information about this problem.

Ability Varies Depending on State Laws

In general, most states are hesitant to allow third parties to initiate divorce proceedings on behalf of other individuals because divorce is seen as a personal matter that can only be decided upon by the married person. Since it can be difficult to determine if the incapacitated person would actually decide to file for divorce if he or she were of sound mind, many states are reluctant to allow another person to make that decision for an incapacitated individual.

However, some states have recognized situations in which it may be necessary for one party to initiate divorce proceedings on behalf of another. Therefore, whether you are able to do this will depend on the laws in your state and your legal authority over the individual involved. For instance, in the case Burnett v. Burnett, a Michigan court determined that a conservator could bring a divorce action on behalf of an incapacitated person. On the other hand, an Indiana court confirmed that a guardian could not file divorce on behalf of an incapacitated individual in that state.

Consult with an attorney in your area for information about what state laws say about this issue.

Alternative Options

If you are prohibited from filing divorce on behalf of your incapacitated loved one, but you are concerned that the person's spouse is abusing the individual in some way, all it not lost. There are other things you can do to protect the person.

One option is to petition to become the person's guardian. This will allow you to make decisions on behalf of the individual in question, which could prevent the spouse from taking adverse action against your loved one. For instance, becoming the person's guardian can provide you with the authority to make medical decisions for the incapacitated person, thereby preventing the spouse from doing something that's not in the person's best interest.

If your loved one is not completely incapacitated, but you feel that may be an issue down the road (e.g. the person suffers from dementia), you could have him or her give you power of attorney over various parts of his or her life. Like guardianship, this document can provide you with the authority to make financial, medical and other decisions for your loved one that could prevent the person's spouse from taking advantage of the person's incapacitated state. For instance, you could remove the spouse's access to the person's money.

Power of attorney is much easier to obtain and can be limited or revoked by the creator at any time, which may be a good option if the incapacitation is a temporary condition.

For more information about filing divorce for an incapacitated person or other options for protecting your loved one, contact a divorce attorney at Eschbacher Law or a similar firm.