Late-Life Divorce-Impaired Capacity

Late-Life Divorce-Impaired Capacity

Impaired mental capacity in late life may affect the marital relationship adversely.  There may be times when a spouse isn’t capable of making decisions in a divorce case and needs another person to make legal decisions instead.  Many people with a mental limitation, disability, or illness are capable of making sound decisions.  If a person appears incompetent to make legal decisions in the context of divorce, a court may appoint a Guardian ad litem (GAL) with authority limited to representing  the person’s interests only in relationship to the dissolution case.

A person is presumed to be competent and capable until a judge decides that evidence proves otherwise.  A family member or friend who recognizes a need for assistance may petition the court for appointment of a conservator who may, under California law, file for divorce on the conservatee’s behalf.   The need for a conservatorship must be proved by certificates of incapacity from one or more doctors that describe the degree of impairment determined from mental status tests administered close in time to the petition for conservatorship is filed with the court.

Often, even with mental impairment a divorcing spouse may be perfectly capable of navigating his or her divorce action with the help of informal networks of caregivers that might include family, friends, neighbors, and public services together with his or her attorney.