Should a Guardian be able to File a Divorce Proceeding?

Imagine a worse-case-scenario: your parents are in a car accident, and your mother becomes incapacitated. She’s no longer able to do many things for herself, and your father takes over the finances, dealing with important issues and running day-to-day life. Over time, your father tires of having a dependent spouse, and begins to move on.

Maybe he puts your mother in a care facility and begins dating, using her income to help finance his lifestyle with the new woman. Say the care facility isn’t the best in the world, and you feel he doesn’t have your mother’s best interests at heart. He starts spending more and more of her money on his lifestyle, perhaps dipping into her retirement account or other assets to buy himself a car or take an expensive vacation. What can you do?

Unfortunately, the laws on guardianship allow very little wiggle room for you to pursue matters on behalf of your mother. If your father is using the marriage to take advantage of your mother’s assets and resources, you may not be able to do anything about it.

If you’re lucky, you might be able to get yourself appointed as her guardian and make some decisions about her medical care. However, the law is quite clear in most states that you can’t file divorce proceedings as a guardian on behalf of the incompetent spouse, so there’s ultimately no way to protect your mother from your father’s deprivations.

The incompetent spouse and the competent spouse don’t have the same legal remedies.

A competent spouse has access to the full range of legal remedies if he should feel the need to use them. However, an incompetent spouse, through a guardian, doesn’t have access to the same legal remedies. If a guardian can’t file a divorce proceeding on behalf of an incompetent spouse, there’s ultimately very little that a guardian can do to protect the incompetent spouse from being taken advantage of. This is an unfair loophole in the law, because it leaves virtually no legal recourse for the incompetent spouse.

Some courts may be willing to grant a divorce proceeding if it was clear that the incompetent spouse was pursuing said proceeding before he or she became incompetent. I.e. if you can prove that your mother was unhappy in the marriage and planned to pursue a divorce, a judge may be willing to take that into consideration. However, many states won’t even allow that, so incompetent spouses don’t even have that small window of recourse.

Ultimately, the law isn’t particularly fair in this regard. The letter of the law has good intentions, in theory, by saying that a divorce proceeding is too personal a decision for a guardian to pursue. However, without granting other forms of legal recourse, the legal system provides no real remedies for exploitation and no way to dissolve a union that is no longer safe or in the best interests of the incompetent spouse.

What do you think? Should a guardian be able to file a divorce proceeding?