Mental Capacity and Divorce

Sea_Shell

Two questions, if I may...

Can an Attorney instigate divorce proceedings on behalf of the donor, if it would be in their best financial interests to do so?   

On the flip side, can someone instigate divorce proceedings against someone who lacks capacity, with or without them having a PoA in place?

Thanks

Browntoa

I suspect a legal minefield

If it's to protect or shield assets from care fees then it's likely to be classed as deprivation of assets .

What benefits do you envisage from the divorce 

Sea_Shell

In the first example, It could be to actually improve their finances and get a settlement that would increase their ability to pay for care, not reduce it.

In the second, they might want to force a sale of the marital home, to release their equity in it.

Either could do it whilst they both have capacity, obviously, as could anyone, but I wondered what would happen if either party loses capacity.

doodling

Hi,

Browntoa said:

I suspect a legal minefield

If it's to protect or shield assets from care fees then it's likely to be classed as deprivation of assets .

What benefits do you envisage from the divorce 

I strongly disagree with the text in bold.  A (fair) divorce cannot possibly result in deprivation of assets.

With respect to the questions asked, I doubt that an attorney can institute divorce proceedings without the involvement of a court as it goes somewhat beyond the scope of an PoA.

There is nothing stopping anyone starting divorce proceedings.  The fact that their partner lacks capacity would probably result in some delay and increase in cost as I would guess that the court would need to appoint someone to represent their partner's interests.

Obviously, depending on the circumstances, lots of people might be making moral judgements about those involved so that needs to be considered.

DullGreyGuy

Is this actually a breakdown in the relationship and you're going your separate ways or a tactical decision and you'll still be a couple post divorce?

You can divorce someone who lacks mental capacity, they cannot consent to the divorce or the financial settlement and so a close friend/family member will need to act for them as "Litigation Friend" and the court will determine if the person is suitable for the role. If no one is suitable the court will appoint the Official Solicitor as the Litigation Friend of Last Resort. The Litigation Friend will negotiate on behalf of your spouse to ensure their interests are represented. 

Sea_Shell

DullGreyGuy said:

Is this actually a breakdown in the relationship and you're going your separate ways or a tactical decision and you'll still be a couple post divorce?

You can divorce someone who lacks mental capacity, they cannot consent to the divorce or the financial settlement and so a close friend/family member will need to act for them as "Litigation Friend" and the court will determine if the person is suitable for the role. If no one is suitable the court will appoint the Official Solicitor as the Litigation Friend of Last Resort. The Litigation Friend will negotiate on behalf of your spouse to ensure their interests are represented. 

Actual breakdown.

Already separated for 30+ years!!

elsien

Aside from any legalities, a large part of a LPA considering what is in someone’s best interests is what they did or would have done when they had capacity.
 In this case, they spent 30 years separated without instigating a divorce. Which is a pretty good indication of their wishes and views throughout that time. So why would they want to do so now?

Is the power of attorney or financial one or a health and welfare one? I think you would be wise to get proper advice on this. 

To answer the other question, yes a spouse can instigate divorce proceedings against someone who lacks capacity. The person lacking capacity will need a litigation friend to support them through the proceedings which the LPA could be. 

Sea_Shell

elsien said:

Aside from any legalities, a large part of considering what is in someone’s best interests is what they did or would have done when they had capacity.
 In this case, they spent 30 years separated without instigating a divorce. So why would they want to do so now?

Just trying to understand possible future outcomes for when (if) things come to a head.

Situations can change, individual needs can  change, from the status quo.


Forewarned is forearmed.
Knowledge is power.
And all that jazz.

Malthusian

elsien said:

Aside from any legalities, a large part of a LPA considering what is in someone’s best interests is what they did or would have done when they had capacity.
 In this case, they spent 30 years separated without instigating a divorce. Which is a pretty good indication of their wishes and views throughout that time. So why would they want to do so now?

But the first question "What is in their best interests" overrides the second one if there is a conflict.

So if it is in the interests of the incapacitated spouse to divorce, the fact that they hadn't already done so isn't really a problem. If the donor has kept all their money in their current account for 30 years earning zero interest, it doesn't mean the Attorney shouldn't open a savings account. 

The obvious answer to "why would they want to do this" is that most of the marital assets are loaded up on the compos mentis spouse's side, and the incapacitated spouse has relatively little funds to afford decent quality care in their own name. In the UK the separated spouse's assets are disregarded from a financial assessment on the incapacitated spouse, and the separated spouse cannot be forced to pay for a higher standard of care than the local authority would provide. So if they divorce, some of the compos mentis spouse's assets could become available.

But this raises a "game theory" question. If this was end-of-life care, it seems to me that it would be in the interests of the other spouse to react to the threat of a divorce by agreeing to pay the care fees, because chances are good that they will pay less in fees during their spouse's lifetime than they would "lose" in a divorce. On death, at the very least the compos mentis spouse keeps anything in their name, on top of which they could inherit from their spouse if the incapacitated spouse hadn't written a Will to exclude them.

If incapacity occurred relatively early in life, it might make sense for the parties to divorce so that both can have a clean break and the other spouse can move on without worrying about paying care fees for decades. But now we're back to the question of why the compos mentis spouse doesn't initiate the divorce themselves; which takes the burden off the Attorney to prove that it is in the incapacitated spouse's interest.

Sure, people can be stubborn, but this is starting to feel like a really unlikely scenario: incapacity relatively early in life, yet after a long separation from the spouse. Haven't bothered to divorce, but have bothered to appoint an Attorney other than the spouse. Both parties have a need to disentangle their finances yet the one who would benefit most refuses to do so and the impetus has to come from the one who is mentally incapacitated.

If the marital assets are roughly evenly distributed between both spouses, or are loaded on the incapacitated spouse's side. then I'm not seeing why it could be in the incapacitated spouse's interest to divorce. The compos mentis spouse is free to petition for divorce as discussed already.

It's inherently a messy situation for someone to be married yet not have their spouse as Attorney. Anyone who lives apart from their spouse for 30 years but doesn't bother to get divorced is asking for trouble of some sort. (At the risk of getting moralistic about it, whatever vows they made at the beginning of the marriage have probably long gone out the window.) I'm struggling to see a situation in which the Attorney petitioning for a divorce on behalf of the incapacitated spouse would be the best solution. 

Sea_Shell

Thanks for that detailed and thoughtful reply.

Just imagine if these were your parents!! 😉

Messy, doesn't begin to cover the potential issues.

elsien

Malthusian said:

elsien said:

Aside from any legalities, a large part of a LPA considering what is in someone’s best interests is what they did or would have done when they had capacity.
 In this case, they spent 30 years separated without instigating a divorce. Which is a pretty good indication of their wishes and views throughout that time. So why would they want to do so now?

But the first question "What is in their best interests" overrides the second one if there is a conflict.

So if it is in the interests of the incapacitated spouse to divorce, the fact that they hadn't already done so isn't really a problem. If the donor has kept all their money in their current account for 30 years earning zero interest, it doesn't mean the Attorney shouldn't open a savings account. 

The obvious answer to "why would they want to do this" is that most of the marital assets are loaded up on the compos mentis spouse's side, and the incapacitated spouse has relatively little funds to afford decent quality care in their own name. In the UK the separated spouse's assets are disregarded from a financial assessment on the incapacitated spouse, and the separated spouse cannot be forced to pay for a higher standard of care than the local authority would provide. So if they divorce, some of the compos mentis spouse's assets could become available.

But this raises a "game theory" question. If this was end-of-life care, it seems to me that it would be in the interests of the other spouse to react to the threat of a divorce by agreeing to pay the care fees, because chances are good that they will pay less in fees during their spouse's lifetime than they would "lose" in a divorce. On death, at the very least the compos mentis spouse keeps anything in their name, on top of which they could inherit from their spouse if the incapacitated spouse hadn't written a Will to exclude them.

If incapacity occurred relatively early in life, it might make sense for the parties to divorce so that both can have a clean break and the other spouse can move on without worrying about paying care fees for decades. But now we're back to the question of why the compos mentis spouse doesn't initiate the divorce themselves; which takes the burden off the Attorney to prove that it is in the incapacitated spouse's interest.

Sure, people can be stubborn, but this is starting to feel like a really unlikely scenario: incapacity relatively early in life, yet after a long separation from the spouse. Haven't bothered to divorce, but have bothered to appoint an Attorney other than the spouse. Both parties have a need to disentangle their finances yet the one who would benefit most refuses to do so and the impetus has to come from the one who is mentally incapacitated.

If the marital assets are roughly evenly distributed between both spouses, or are loaded on the incapacitated spouse's side. then I'm not seeing why it could be in the incapacitated spouse's interest to divorce. The compos mentis spouse is free to petition for divorce as discussed already.

It's inherently a messy situation for someone to be married yet not have their spouse as Attorney. Anyone who lives apart from their spouse for 30 years but doesn't bother to get divorced is asking for trouble of some sort. (At the risk of getting moralistic about it, whatever vows they made at the beginning of the marriage have probably long gone out the window.) I'm struggling to see a situation in which the Attorney petitioning for a divorce on behalf of the incapacitated spouse w

 not an either/or more a continuum in my view.

ould be the best solution. 

I don't think it's quite that straightforwards as that makes it sound.  For whatever reason, the person chose to maintain the status quo so any best interests decision must take that into account. It doesn't mean that past view can't be overridden but it certainly should be explored as to their reasons why because to the person and their best interests their world view may still take precedence over the financials. Best interests is around the bigger picture.