DID YOU KNOW ? BY F.M. ZAVALA LAW FIRM, INC.
05/17/2021
Persons Who Lack Legal Capacity to Make Decisions (Incompetent Persons)
If a spouse lacks legal capacity to make decisions or is under a conservatorship, a petition for dissolution of marriage may be filed on the spouse’s behalf by a guardian ad litem or conservator, but only if it is established that the spouse lacking legal capacity is capable of exercising judgment and has expressed a wish that the marriage be dissolved on account of irreconcilable differences.
If the spouse is incapable of exercising such judgment, the guardian or conservator does not have the power to initiate and prosecute a petition for dissolution. However, if necessary to protect the assets of the estate, the conservator has the authority, subject to the approval of the probate court, to petition for legal separation.
The mental capacity required to petition for dissolution is similar to the mental capacity required to marry, which is a relatively low standard. The spouse need only be capable of exercising a judgment and expressing the wish that the marriage be dissolved on account of irreconcilable differences.
Even the appointment of a conservator, which generally deprives a person of the power to enter into contracts, does not affect the capacity to marry or to petition for dissolution.
A family court may appoint a guardian ad litem at any time in order to protect the interests of a person who lacks legal capacity to make decisions. In some cases, the property and support rights of a spouse who lacks legal capacity are best determined by a family court proceeding, rather than a proceeding in probate court, because of the additional statutory remedies available to determine inter-spousal issues.
A spouse who lacks legal capacity to make decisions is entitled to all the procedural rights and protections of a competent spouse.