While it may not be a topic many wish to think about, the way in which one sets up their estate plan can have a significant impact on a subsequent divorce, particularly when one’s capacity to take legal action on one’s own behalf later in life becomes an issue. The following represents a snapshot of some of the issues to be considered in this regard.

Many people are familiar with what is known as a “Power of Attorney,” which is technically defined as “a written instrument by which an individual known as the principal authorizes another individual or individuals...known as the attorney-in-fact to perform specified acts on behalf of the principal as the principal's agent.”  What many people may not be aware of, however, is the difference between a general “Power of Attorney” and a document referred to as a “Durable Power of Attorney.” Importantly, the latter allows an individual to nominate, “the conservator, guardian of the principal's estate, or guardian of the principal's person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced”.  The key phrase in the foregoing quotation is “for consideration,” which basically gives a court the discretion to override an individual’s designation if they find a reason to do so.

When an individual’s capacity to proceed on their own behalf (whether in a divorce or other legal action) is in question, the court can appoint a “guardian ad litem” to protect that individual’s interests in the litigation, and to investigate whether further safeguards are necessary, i.e., whether a “guardian” should be appointed. A “guardian” as opposed to a “guardian ad litem”, stands in the shoes of the incapacitated individual or “ward” and may make substantive decisions on that person’s behalf. For a court to appoint a “guardian,” there must be a determination of incapacity supported by the affidavit of two physicians or one physician and a licensed practicing psychologist. 

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The issue of whether a “guardian” may initiate a divorce action on behalf of their “ward” varies greatly amongst jurisdictions. In New Jersey, same is expressly permitted by statute ; however, in those states without an applicable statute, historically the “majority rule” has been that divorce is too personal a decision to vest in a third party. 

Karolina A. Dehnhard, Esq., may be reached at 973-379-4800 (Ext. 4524) or kdehnhard@buddlarner.com.

Elizabeth M. Foster-Fernandez, Esq., may be reached at (973) 379-4800 x4473 or efoster@buddlarner.com

Budd Larner, P.C., is a law firm of 75 attorneys with offices in New Jersey, New York and Pennsylvania. The firm’s practice areas include: corporate and business transactions; commercial litigation; insurance matters; intellectual property law; family and matrimonial law; employment law; real estate, creditors' rights and bankruptcy matters; personal injury law; and appellate matters.