Capacity and Divorce: The Role of Litigation Guardians

How can an incapable person obtain a divorce?

In this post, Jeffrey Sun, a Fresh Legal intern, reviews the laws around powers of attorney, litigation guardians, and divorce proceedings.

A Primer on Acting for Incapable Persons

What powers does a duly appointed Power of Attorney have?

A properly prepared power of attorney for property allows the appointed attorney to do anything that the grantor could do with property, except make a will. It is a very broad scope of power.

Read More: Estate Planning Essentials: Power of Attorney for Property

What is a "Committee" for an incapable person, and what is a "Litigation guardian"?

If one becomes incapable, certain people (e.g., the Public Guardian and Trustee, the duly appointed attorney, or family members) can apply to be appointed “the committee” of an incapable person. Being appointed as the incapable person’s committee involves, among other things, representing the person’s interests in litigation. This is called being a litigation guardian.

A litigation guardian has authority to instruct counsel throughout litigation. They are presumed to make decisions in the best interests of the person under disability.

Litigation Guardians and Divorce Proceedings

There are relatively few cases that involve incapable persons’ litigation guardians and divorce. Among those few is the case of Beadle v. Beadle.  Beadle makes clear that a litigation guardian can start, or continue, divorce proceedings on behalf on an incapable person only if it can be proved that the divorce is in the person’s best interests. In Beadle, the incapable person began the divorce proceedings before she became incapable. As such, her committee was given leave to pursue the divorce if it could show evidence that the divorce was in her best interests.

In the case of M.K.O. (by his Litigation Guardian) v. M.E.C., the court affirmed Beadle and clarified that in the case of divorce proceedings, the requirements of the Divorce Act must still be satisfied (e.g., living separate and apart for one year with no reasonable prospect of reconciliation). In that case, the divorce proceedings were dismissed because there was a lack of evidence that there was no reasonable prospect of reconciliation. The fact that the person was incapable and would remain that way was insufficient to show that there was no prospect of reconciliation.

The case of Calvert (Guardian of) v. Calvert stands for the proposition that when dealing with an incapable person, there is no need to show evidence of a current intention to live separate and apart, but there needs to be evidence of prior intent, when the person was capable. In that case, the divorce was granted to the incapable person’s litigation guardian, because there was evidence of a clear intention to live separate and apart prior to the determination of incapacity.

Can a Litigation Guardian get a divorce for an incapable person?

If a person was capable when they formed the intention to end a marriage, and later becomes incapable, provided it remains in their best interests, then a litigation guardian can proceed with a divorce on behalf of the incapable person. The onus of proving these elements, however, rests upon the litigation guardian.