In our free society, the ability to make our own decisions is part of the right of self-determination; part of our individual liberty. A marriage, and its dissolution, require a

In probate law, the areas of the adult guardianship and the conservatorship involve a portion of the probate code that utilizes a substitute decision-maker. In family law, the family court has exclusive jurisdiction over the divorce process. Sometimes, these areas of law intersect.

For a variety of reasons, some people reach a point in their lives where they can no longer make decisions for themselves, either on a temporary or permanent basis. These people then need that substitute decision-maker to make all the ongoing important decisions in their life such as their residential placement, their medication(s) and health care treatment, and the management of their income and property.

In some cases, the need for a substitute decision maker arises just before or during a divorce proceeding.  One recent case established that fiduciaries can institute proceedings in a family court. The Court of Appeals, in Estate of Jeff Bently vs Ruby Bently, affirmed the family judge’s ruling that the fiduciary could institute separate maintenance proceedings in the family court.

Many times, a mental incapacity can give rise to tension within a marriage and, eventually, can lead to a divorce. When this occurs, the incapacitated individual needs someone other than their divorcing spouse to aid them in the decision-making process and to assist them through the divorce process.

For more information about adult conservatorships and guardianships, click here.

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