Tuesday, November 26, 2013

Conservator Can File Divorce on Behalf of Ward

As a Public Administrator, I have seen this issue come up from time to time: a person deemed incompetent and in need of a professional fiduciary to manage the protected individual's affairs is married, but either the fiduciary [a conservator or guardian] or the spouse files for divorce.

The powers of a conservator were recently challenged in a separate maintenance case from Kent County.  The Michigan Court of Appeals held in the Estate of Jeff Bently -v- Ruby Bell Bently, that a conservator could file for separate maintenance and divorce.

The husband was unable to care for his own affairs and had been separated from his wife of 20-years since 2008.  After a conservator was appointed, the conservator promptly filed for separate maintenance; she could have just as easily filed for divorce.

On appeal, the wife argued that the Kent County Family Court Judge did not have the authority to order a judgment of separate maintenance because her husband lacked the capacity to consent to the proposed property division.  In affirming the family court, the Court of Appeals held that the conservatorship statute and applicable court rules provide for a conservator to file law suits and defend law suits on behalf of the protected individual, without limitation.

Based on a plain reading of these applicable statutes and court rules, the Court of Appeals held that a conservator, and presumably a guardian as well, can prosecute a divorce proceeding on behalf of the protected individual.

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3 comments:

Elaine Renoire said...

Although the conservator had the legal right to file for the separate maintenance and/or a divorce, this case quoted illustrates a major wrong in guardianships. The husband and wife had created a long-standing history that should have continued after the man's loss of competency. If the spouses had wanted to divorce each other, they had 20 years to do that; they didn't. The guardian did not follow the wishes of the ward.

Alfred Jacobs said...

The prospect of a divorce can be unsettling, to say the least and causes quite a turmoil in your personal life. At such times you may not be able to think coherently and take the right decisions about your future.If you are the father and husband, your okc divorce consultant prepares the matter from your perspective. If you are the mother and wife, you can be sure your OKC consultant will do his best for you.

Timothy P. Flynn said...

Elaine and Alfred, thank you for your commentary. Divorce is a rough process under any circumstances. In our opinion, having a guardian or conservator involved certainly complicates matters. Mental illness is hard on everyone involved.