Wednesday, October 15, 2014

Incapacitated individuals and family law: who can file for divorce?

Q: Can a guardian or conservator file for divorce on behalf of an incapacitated individual?

A: Yes. 

The Michigan Court of Appeals has recently ruled on this issue. See In Re: Burnett Estate,
834 NW 2d 93 - Mich: Court of Appeals 2013.

If an individual becomes incapacitated, it's likely that he or she will then have a person acting for him or her. It could be a conservator -- who's in control of his or her finances, or a guardian -- who's in control of his or her personal decisions (like where to live, what doctors to see, etc.). 

That guardian or conservator -- whether appointed by a court or selected through another method-- is allowed under Michigan law to file suit, and be sued on the incapacitated individual's behalf. (See Michigan Court Rules 3.202 (A) and 2.201 (E)). Under the Burnett case, that includes a suit for divorce (and, presumably custody). 

In the Burnett case, a divorce was filed by the conservators of the Plaintiff. The Defendant later motioned the court for summary judgment, asking for the circuit court judge to dismiss the action, based on the case being filed by a conservator.

The circuit court dismissed the summary judgment motion, saying a conservator does have authority to file on behalf of an incapacitated individual. Other issues existed in the case. But once the case was decided, the Defendant appealed on multiple grounds, including the grounds that the conservator should not have been allowed to file, and that the circuit court should have granted the summary judgment motion.

The Court of Appeals disagreed with this ground of Defendant's appeal, and interpreted the Court Rules to allow for a divorce to be filed by a conservator or guardian.

"Had the legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of [the statute]." Burnett, at 97.

Have more questions about family law or estate planning (or the inter-twining of the two)? Ask me! Post your comments or questions on this blog. 

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