Guardian may pursue divorce for ward.

In a decision issued 8 October, the New Hampshire Supreme Court ruled that the guardianship statute empowers the probate court to authorize a guardian for an incompetent person to obtain a divorce. After suffering a stroke in 2003, husband (age 75) moved out of the marital home and filed for divorce. His lawyer became concerned about husband's mental competency to proceed with the divorce. After a full evaluation, a psychiatrist recommended that husband "receive assistance" in making major decisions.

Husband's brother petitioned for and received a guardianship over husband. The guardian pursued a divorce and it was granted. On appeal, wife argued that a guardianship did not include the authority to obtain a divorce. The Supreme Court ruled that such authority was in the guardianship statute and that to interpret the statute so that neither the ward nor the guardian could act would lead to "absurd results."

Tags: divorce for incompetent person, guardianship, nh divorce law

Posted October 23, 2008


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