Posts Tagged ‘Ruvalcaba v. Ruvalcaba’

Does a Guardian Have the Power to File a Divorce Petition? In Some States, Yes

The issue arises with some regularity. A married couple, perhaps in their second marriage. Adult children. One spouse becomes ill — often, but not always, demented. The other spouse, unable to cope, turns the care of the ill spouse over to one of the children. That child figures out that, financially, at least, the ill spouse would be better off divorced. That way, control of the ill spouse’s share of the couple’s property could be managed for the sole benefit of the ill spouse, and care could be assured. But can the guardian file a divorce petition?

In most states, the answer is not clear. A handful of states have explicitly addressed the question, with mixed results. The latest state court to face the issue is the Supreme Court of Vermont.

Catherine and Philip Samis had been married for almost a quarter century when Mrs. Samis began to show signs of dementia. Mr. Samis, a Canadian citizen, withdrew across the border to one of the couple’s homes, taking most of their personal effects with him. Mrs. Samis’ son from a former marriage stepped in, secured a guardianship of his mother’s person and estate (in Arizona we would call it a guardianship and conservatorship), and began overseeing her care.

Mrs. Samis is a U.S. citizen, and would be entitled to Social Security benefits under her first (now deceased) husband’s account if she were not married. Since Mr. Samis is a Canadian citizen, there are no Social Security benefits payable to her while she remains married. Her son decided it would be in her best interest — financially, at least — to get divorced, and to divide the couple’s property so that he could control how her share was spent.

Once a divorce proceeding was filed, however, Mr. Samis objected. He argued that Vermont law did not permit a guardian to petition for divorce on behalf of a ward. As with most states, the Vermont statutes were silent on the subject; there was a single reference in Vermont court rules to guardians signing divorce petitions, but no indication how the Vermont legislature felt about the possibility.

After the divorce court denied Mr. Samis’ objection, granted the divorce, divided the couple’s property and ordered Mr. Samis to make a lump-sum support payment of about $300,000, he appealed. The Vermont Supreme Court was thus faced with determining whether Mrs. Samis’ guardian had the authority to initiate the proceeding in the first place.

Ruling that a guardian’s powers are limited to those spelled out in the guardianship statutes, the state’s high court reversed the divorce court’s orders. The justices considered the holdings in a handful of states, including Arizona, and concluded that most do not permit guardians to file divorces.

The ability to file for divorce is intensely personal, said the justices. The only Vermont precedent that addressed the issue at all, an 1877 Supreme Court case, agreed; in that case, a person who had been placed under a guardianship of the estate (what would be a conservatorship in Arizona) was permitted to file his own divorce proceeding despite the guardianship. Now it is clear that in Vermont, at least, the guardian can not file the divorce petition for a ward who has become incompetent.

What about the other states? The Vermont decision cites several that agree with its holding, including appellate courts in Kentucky, New York and South Carolina. Courts in Massachusetts and New Hampshire have allowed guardians to petition for divorce, but have done so based on specific state statutes. According to the Vermont justices, only two states, Arizona and Washington, have permitted guardians to file for divorce even without the support of statutes clearly authorizing the action. Samis v. Samis, February 18, 2011.

As the Vermont Supreme Court notes, Arizona is one of the minority of states clearly permitting the guardian to file a divorce proceeding, even without express statutory authority. That is the holding of the Arizona Court of Appeals in the 1993 case of Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time (yes, Virginia, there was an Elder Law Issues in 1993/1994), and which we have since described in more detail for our readers.

Wife’s Opinion Regarding Divorce Controls Despite Her Incapacity

It doesn’t happen often, but it does happen. An elderly couple, with one spouse slipping mentally, contemplates divorce. Perhaps the well spouse is simply unable to cope. Perhaps both are compromised mentally and/or medically. Perhaps there are long-term care issues involved. Perhaps the spouse with mental failings has simply decided — and maybe even as part of his or her delusional mental system — that the marriage must end.

How does the divorce court deal with a mentally impaired spouse? One way is for someone to secure appointment of a guardian and/or conservator. Arizona law, like the law of many states which have considered the question, permits a guardian to prosecute a divorce proceeding for the ward. That question was settled in a 1993 Arizona Court of Appeals decision (Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time–in the very first year of Elder Law Issues). The Ruvalcaba case raised but did not answer a number of related questions:

  • If a guardian (of the person) can bring the divorce action, does it require a conservator (of the estate) to negotiate a property settlement?
  • What if the incapacitated person objects to the divorce? What if he or she has no opinion in favor or opposed?
  • Is it important that the divorce be financially or personally beneficial to the divorcing spouse? For instance, is it relevant to determine whether the other spouse has been abusive, or taken community assets wrongfully, or would benefit because of a prenuptial agreement?

These and a number of other questions are unanswered in Arizona, though the 1993 case described earlier suggests that the possibility of abuse might be relevant in determining how much authority to give to a guardian. That case also raised questions of child custody — the guardian (the wife’s mother) sought custody of the couple’s children for her disabled daughter, who lived with her. The court acknowledged that the practical result of the divorce order would be that the grandmother/guardian would get custody, which she could not have obtained directly.

A recent California case provides at least a little insight into the kind of divorce proceeding involved in guardianship matters — though the California court gave authority over the divorce to a conservator of the estate. Despite that difference, the California case probably gives some guidance for similarly situated Arizonans.

Evelyn Straczynski filed for divorce in 2005, alleging (among other things) that she and her husband had been married since 1950. Her husband answered that the marriage had only been in place since 1986, that his wife suffered from dementia, and that her three decade mistake was symptomatic of her condition.

After the divorce proceeding had been moving, albeit slowly, for about a year, the California probate court appointed a conservator for Mrs. Straczynski. The judge also interviewed Mrs. Straczynski directly to determine whether she understood what was happening and whether she wanted a divorce; the judge decided that, though she was impaired, she could express her opinion that she wanted a divorce from Mr. Straczynski.

Three years later the divorce proceeding had not been concluded. The family court judge scheduled a hearing on Mr. Straczynski’s motion to dismiss the divorce; he maintained that the couple had reconciled. His basis: although he had not been allowed to see his wife for several years, when he was permitted to visit she recognized him immediately, expressed her attachment to him and generally manifested a desire to be with him.

The family court judge denied Mr. Straczynski’s motion to dismiss the divorce proceeding, but dismissed it anyway, on different grounds. He found that there is way a divorce can be granted on the request of a now-incapacitated person, that she could not testify that there were irreconcilable differences, and that divorce would not be in Mrs. Straczynski’s best interest for personal and financial reasons.

The California Court of Appeals reversed the judge’s dismissal on those grounds and returned the case for further consideration. The key question, according to the appellate court, is whether Mrs. Straczynski now has the mental capacity to express an opinion about whether the divorce should be completed. If she does, then it should go forward; if she does not, then the divorce should be dismissed. By inference, if Mrs. Straczynski has the capacity to express her opinion and that opinion is that she would like to stay married, the divorce proceeding should be dismissed. In re Marriage of Straczynski, October 22, 2010.

Mrs. Straczynski’s case only deals with the situation in which the spouse seeking a divorce is incapacitated — and the decision may not be persuasive in Arizona on that narrow question. More common is the situation in which the spouse seeking the divorce is fully competent, and the other spouse is incapacitated. The answer in that situation is fairly clear in Arizona, though it remains uncertain what relative role a guardian of the person and conservator of the estate should play in such cases.

Standards for Adult Day Care Centers


From The Wall Street Journal, January 6, 1994

“An adult day-care boom propels a move to set up a national accrediting system.”

Adult day-care centers have multiplied tenfold since the mid-1980s to an estimated 3,000 nationwide, and the trend is expected to continue as more parents of employed baby boomers reach ages at which they need daytime care. Many employers have begun providing referrals to adult day care and other services to aid the estimated 20% of workers who care for aging relatives

But only about half the states regulate adult day-care centers, and quality is uneven. Facilities range from high-quality centers offering health care and educational, exercise, cultural and social programs, to warehouses where aged and emotionally ill people are thrown together to spend most of their days watching television.

Now, the National Council on Aging, with partial funding from American Telephone and Telegraph and two of its unions, has begun setting up an accreditation program to encourage centers to upgrade quality and help consumers find high-quality care.

The council is training aides at adult day-care centers in five states and urging state organizations of center directors to embrace uniform quality standards, says Donna L. Wagner, the council’s vice president, programs. By 1996, the National Institute on Adult Day Care, a council unit, plans to endorse centers based on quality of programs and staff.”

Guardianship and Divorce

It occasionally happens that an incapacitated person needs to be divorced from his or her spouse. This may be because the spouse is abusive, because benefits have been reduced or because the spouse refuses to cooperate in applying for benefits, for instance. Until recently, it was not clear what steps could be taken to secure a divorce in such cases.

In the recent case of Ruvalcaba v. Ruvalcaba (174 Arizona 436, 1993), the Arizona Court of Appeals addressed this question. Mrs. Ruvalcaba’s mother became her guardian after she suffered a serious head injury and entered a coma. Mrs. Ruvalcaba ultimately recovered from her coma, but continued to suffer from amnesia and remained unable to make her own medical decisions or living arrangements.

Mrs. Ruvalcaba’s mother, fearing that her daughter’s husband would become abusive, determined that it would be in her ward’s best interest to pursue a divorce. She initiated the proceedings on her daughter’s behalf. Her daughter’s husband objected, alleging that the power to start a divorce is too personal to be delegated to a guardian. The Court of Appeals disagreed, and held that a guardian may pursue a divorce on her ward’s behalf. The Court cited Rasmussen v. Fleming, the Arizona “right-to-die” case, to show that very personal rights may be exercised by a guardian.

The guardian also sought custody of the couple’s minor children for her incapacitated daughter. The Court permitted this, indicating that the best interests of the children might be served by leaving them with their mother (and grandmother)!

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