Not all divorces are necessarily the divorcing spouses. We have represented elderly Clients who desired to divorce their incapacitated spouse. Sometimes, the incapacitated spouse requires nursing home care, the cost of which can be unaffordable creating marital debt and making both spouses at risk for this debt. Or circumstances may change whereby one spouse is unable to take care of the incapacitated spouse requiring him or her to be placed in a nursing home or memory care facility. Oftentimes, elderly spouses will make the financial decision to divide their assets which is then court approved to avoid the risk of long-term healthcare costs to both parties.
The fact that your spouse is incapacitated or has other mental health diagnoses does not prohibit you from moving forward with separation or eventual divorce. If your spouse has a recorded Durable Power of Attorney in place, and so long as this document contains specific language allowing the Agent to litigate or settle claims or legal disputes, this is sufficient to allow the Agent to represent your spouse’s interests in a divorce case.
Of course, your spouse must have had capacity to execute the Durable Power of Attorney nominating his or her agent; if that was not the case, this brings another set of questions at play beyond the scope of this article. But let’s assume the document is appropriately executed, then what? The Agent under the Durable Power of Attorney can review and execute a Marital Settlement Agreement on behalf of the incapacitated spouse. The Agent can appear at any hearing on behalf of the spouse and answer questions from the Court or take positions on behalf of your spouse no different than your spouse appearing and litigating any claims in a legal proceeding.
If your spouse has not executed a Durable Power of Attorney, you can ask the Court to appoint a Guardian ad Litem on behalf of your spouse to likewise represent his or her interests in the legal proceeding. The Guardian ad Litem can appear and testify in Court on behalf of your spouse, can be subject to cross examination, or such other Court requirements.
If your spouse already has or requires a Guardian or Conservator, one or both could be appointed by a Probate Court in which case the Guardian or Conservator could appear on behalf of the spouse in other legal proceedings, including Family Court proceedings.
Interestingly, our law forbids your incapacitated spouse or his or her Agent from seeking a divorce. The reason behind this is that a divorce is deemed personal to a spouse. It is against public policy for anyone other than spouses to seek a divorce in South Carolina. However, nothing prohibits you from requesting a divorce from your incapacitated spouse at the appropriate time.
Many times, attorneys do not want to handle these types of cases out of fear that they cannot proceed when a spouse is incapacitated. This is not true, and your case can move forward so long as an appropriate legal agent is appointed on behalf of your incapacitated spouse.
