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Mom has dementia, can she legally divorce my dad?

My 77-year-old mother, who is suffering from dementia no longer recognizes her husband of 50 years as her husband or my father. Although they live together in their own house, she thinks my 81-year-old father is some sort of caregiver. She is convinced that dad left her and is "running around" with other women. Photos, forms of identification and testimonials from friends and relatives were greeted with accusations of fraud and deceit. Over the last two weeks, she has seen an attorney to write my father out of the will and is seeking a divorce. I took her to the appointment concerning the will and, fortunately, was able to inform the attorney of the situation before hand. He still rewrote the will and she left the disposition of everything to me. He told us my father could protest the will, anyway. I'm seeking further legal advice concerning that procedure. Now, she wants to divorce my father and has begun pressing the issue. The aforementioned attorney referred her to one of his partners. My father, bless his soul, has remained calm and in control. My mother ruled the household with an iron fist. Until her dementia struck, he was like a fish out of water in regard to family finances.
Status: Open    May 23, 2015 - 09:29 PM

Elder Law, Dementia

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Expert Answers

Jul 15, 2015 - 09:36 AM

Each state has case-law that has dealt with this question so my answer will not be state-specific. Generally though, a person must have the mental capacity to understand what they are doing before they can proceed with a divorce action. If they do not have capacity, the judge will appoint what is known as a Guardian ad Litem, whose role is to safeguard that person's interests. So yes, a person can obtain a divorce even if they have dementia, but a GAL will be appointed as part of the process. Your father can still raise all of the defenses available to him, but each state views divorce slightly differently. I advise hiring a Family Law attorney in your state who has Elder Law experience as well. Hope this helps.

Jul 15, 2015 - 09:39 AM

Your mother is considered competent until she is declared incompetent by a court of law. It sounds like you or your father would be well advised to bring an action for guardianship and conservatorship.
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