Despite Guardianship, Ward May Have Capacity to Marry

MAY 2, 2011 VOLUME 18 NUMBER 16
We have written in previous installments about differing state laws regarding the ability of a guardian (of the person) or conservator (of the estate) to file a divorce proceeding “for” an incapacitated adult. The question that comes up more often from our clients is a little different, though. In its most direct form, it might be phrased like this: “if I get a guardianship over my demented mother, will that prevent her from getting married without my permission?”

The exact dimensions of the question, of course, vary with each asking. Sometimes there is familial anxiety about a late-life romance blooming in the assisted living facility or nursing home where a parent has been placed. Sometimes the concern is over a developmentally disabled 17-year-old about to acquire, at least theoretically, the legal right to make foolish decisions. Sometimes the question is focused on a particular dangerous suitor, and sometimes it is more generalized.

The short answer to the question: the mere fact of a guardianship probably will not prevent the ward from getting married, or the marriage from being determined to be valid. The level of capacity required to enter into a marriage agreement is not exactly the same as the level of capacity required to make one’s own placement or medical decisions — or even to enter into other kinds of contracts. But the facts underpinning the guardianship proceeding are likely to be the same facts utilized in any later challenge of the validity of a marriage.

Take the recent example of Christopher C. Oakley, who lives at Lamplight Village, an assisted-living facility in West Plains, Missouri. Mr. Oakley suffered a childhood traumatic brain injury in 1986, and has required supportive assistance with bathing, housekeeping and personal care ever since. His father was apparently appointed as guardian of his person in a Florida proceeding in 1995. A professional fiduciary was appointed as conservator of Mr. Oakley’s estate at the same time, and continues to manage the proceeds from settlement of a personal injury lawsuit filed in connection with the original accident.

As Mr. Oakley reached his early 20s he became involved with Melissa Warren, another resident of Lamplight Village. She, too, had a guardian and conservator — the Howell County, Missouri, Public Administrator was appointed to handle her finances, medical and placement decisions after the probate court determined that she was unable to do so herself.

In 2006 Mr. Oakley and Ms. Warren decided they wanted to get married. They each asked their respective guardians for permission, and both refused. They then had a friend drive them to a neighboring state, where they were married. Upon their return they began to live together in a shared apartment at Lamplight Village, and they identified themselves as a married couple.

The two guardians responded quite differently. The guardian for Ms. Warren (now Mrs. Oakley) did not initially approve, but sat down with the couple and discussed what they had done. The guardian decided that they really did want to get married, that they understood the emotional and financial meaning of their decision, and that the marriage should be allowed to stand. In fact, she told the judge, if the marriage was annulled she would intend to immediately file a petition to secure court approval for a new marriage.

Mr. Oakley’s guardian reacted to the news of the wedding by filing a petition to have the marriage annulled. He argued that his original Florida guardianship was based on a finding that his son was incapacitated, and that the marriage therefore was invalid in the first place. In testimony, he explained himself by asking, rhetorically: “what happens if he decides ten years from now that if somebody else — another girl comes into his life and it’s better and bigger and everything than what he had?” He also filed a Missouri guardianship proceeding, which was granted while the annulment proceeding was pending.

The judge hearing the annulment petition denied Mr. Oakley’s father the relief he sought. The fact of a Florida guardianship, reasoned the judge, did not prevent the ward from having the capacity to understand the meaning and effect of marriage. Neither did the fact that his intellectual functioning was well below “normal” intelligence, with an IQ estimated at about 70.

The Missouri Court of Appeals agreed, and allowed the marriage to stand. The burden of proving that Mr. Oakley lacked capacity to marry was on his guardian, ruled the appellate judges, and he had failed to carry that burden. The existence of a Florida guardianship was not adequately shown, and neither was the effect of that order. The evidence considered by the trial judge was sufficient to support his finding that Mr. Oakley, despite any guardianship order, understood the nature and effect of marriage well enough to enter into this most personal of contractual arrangements.

There are a number of other interesting side-issues involved in Mr. Oakley’s marriage annulment proceeding. At least, they are interesting to lawyers — everyone else might find them less bracing. One such issue: the lawyers, the trial judge and the appellate judges all agreed that Mr. Oakley’s capacity to marry should be assessed under the law of Arkansas, where the marriage took place, rather than the law of Missouri, where the couple lived and the legal action was filed. Meanwhile, Mr. Oakley’s father insisted that the law of Florida should govern the question of whether a ward automatically loses all capacity to marry upon the appointment of a guardian; that argument was lost, however, when the Missouri courts decided that he had not proven the existence of a Florida guardianship as required by Missouri law. In Re Marriage of Oakley, April 27, 2011.

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14 Responses

  1. jeff keen

     /  January 18, 2013

    i am trying to find out if a guardian can petition for divirce in the state of wisconsin and if there is any cases that might help me find the answer.

  2. Jeff:

    State laws vary on this subject. You should ask for help from a Wisconsin lawyer. It might be that the issue has never been addressed by the Wisconsin legislature or courts. Good luck.

  3. christy

     /  June 26, 2015

    My mom has guardianship of me and said if I get married and she didn’t approve of it, she could get it annulled. The guardianship was filed in South Carolina, and I wasn’t sure if she actually could or not.

  4. Christy:

    Talk with a lawyer in South Carolina. The answer will be state-specific, and will vary based on other considerations, as well.

    Robert B. Fleming
    Fleming & Curti, PLC
    Tucson, Arizona

  5. Christina

     /  November 20, 2015

    I need to know what’s Missouri laws are regarding a person with a guardian can get married without permission to someone who isn’t incompetent or doesn’t have a guardian

  6. Christina:
    You should talk with a Missouri lawyer. We are not qualified to answer Missouri law questions, and it’s likely that the answer will be more complicated than a simple “yes/no” response anyway.
    Good luck.

    Robert B. Fleming
    Fleming & Curti, PLC
    Tucson, Arizona

  7. Allena Broderick

     /  April 10, 2016

    I’m a ward of the state and engaged and I was wondering that because I’m 18, if I proceed with the marriage would I be automatically emancipated and no longer a ward of the court?

  8. Allena:

    State laws differ, and small changes in facts can make a big difference. Talk with a lawyer in your community about the effect of your upcoming marriage, and about whether there might even be a question about the validity of your marriage.

    Congratulations on the engagement, and good luck.

  9. Jean

     /  October 23, 2016

    If my daughter gets married, will I automatically lose adult guardianship? (She is seeing a guy who has schizophrenia.)

  10. Jean:

    The answer probably depends on state law. In Arizona, at least, the marriage would not automatically end the guardianship of an adult. Talk with a lawyer in your state to see if the answer is the same.

    Robert Fleming
    Fleming & Curti, PLC
    Tucson, Arizona

  11. William

     /  January 10, 2017

    My parents are in their 80’s and have been divorced for 35 years until last month when they got married in FL behind my back. (dad has no scruples, he has no money, mom is worth about a million). My mom has lived in CA and my dad splits his time between both states. My mom has severe dementia and is codependent on him for support but always told me she wants a divorce even though they already were until now (memory loss is severe). I am the only son and am seeking conservatorship in CA as a result. Will it be a big challenge to annul the marriage in FL in I gain conservatorship in CA?

  12. William:

    You will need to talk with the California lawyer handling the conservatorship for you. She may, in turn, refer you to a Florida lawyer to find out more about whether you could file something there, and what problems and costs might be associated. You have asked a very good, very practical question — but it’s way too complicated and state-specific for us to be of much help. Sorry about that, and good luck dealing with your parents’ current issues.

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  2. Court Annuls Marriage After Death of “Spouse” | Elder Law Issues — Fleming & Curti, PLC
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