Can A Guardian File for Divorce on Nursing Home Resident’s Behalf?

Can A Guardian File for Divorce on Resident’s Behalf?

As the frequency of our elderly clients needing long term care increases, we review more and varied nursing home asset protection planning opportunities.  One rather unconventional method for protecting a greater portion of the marital assets just might be divorce.  Divorce is certainly not a preferred estate and elder law technique, but it may provide the protection that some clients are seeking.

While the Medicaid law allows for the spouse at home (Community Spouse) to retain a certain portion or the marital assets, that portion might be less than the portion of the assets he or she might receive through a divorce.  Therefore, the Community Spouse might choose to seek a divorce so that he or she could retain a greater portion of the overall marital estate.

To carry out this planning consideration, it is preferable for the spouse in a nursing home (Institutionalized Spouse) be able to understand the divorce issues.  If the Institutionalized Spouse is not mentally competent, then an Agent under a general durable power of attorney (POA) or Guardian would have to represent their interest.   Where there is a lack of mental capacity, it is better if the incapacitated nursing home resident had a named Agent to act as a POA.  This strengthens our ability to facilitate the planning.  Where there is no Agent under a POA, we are left with the possibility of someone seeking a Guardianship over the incapacitated nursing home resident.  The Guardian would then have to represent them in the divorce procedure.

Unfortunately, the Guardian will have limited powers and authorities.  The limitations are placed on the Guardian by county and state law.  Because of the limitations, it is possible that the Guardian will not be able to bring a divorce action if necessary for desired asset protection.

Below is a synopsis of the Indiana Case, Marriage of Tillman v. Tillman.  This case revolves around a dispute over the enforcement of a pre-nuptial agreement.  While this case is not identical to the typical elder law planning case, it does raise the question of, what would happen if a Guardian wanted to initiate a divorce proceeding in order to protect marital assets from nursing home spending?

The Case:

An Indiana appeals court affirms the dismissal of a divorce action filed by a nursing home resident’s guardian on the resident’s behalf, finding that well established state law does not authorize a guardian to take such action.  Marriage of Tillman v. Tillman (Ind. Ct. App., No. 87A05-1212-DR-619, July 3, 2013).

A few days before their marriage on June 3, 1998, Harry and Virginia Tillman entered into a prenuptial agreement in which Mr. Tillman agreed to provide for Mrs. Tillman’s reasonable support, care and maintenance during the marriage.  In 2008 Mr. Tillman suffered a stroke and a guardian was appointed over his person and estate.  Soon thereafter, the guardian placed Mr. Tillman in a nursing home.

In 2012, Mrs. Tillman filed a petition to enforce the prenuptial agreement’s support provisions.  Mr. Tillman’s guardian responded by filing a divorce action on his behalf.  At hearing, the parties stipulated that Mr. Tillman met the dictionary definition of “insane.”  The guardian argued that it was vital for Mr. Tillman to remain in his current nursing home and have sufficient assets to pay its nearly $7,000-a-month cost.  The guardian claimed that because the nursing home did not accept Medicaid, Mr. Tillman would be forced to leave when his assets were depleted in less than two years.  Ultimately, the trial court granted Mrs. Tillman’s motion to dismiss the divorce action.

The guardian appealed, arguing that the trial court’s reliance on decades-old precedent establishing that a guardian is not authorized to file a divorce action on a ward’s behalf is no longer consistent with state policy allowing no-fault divorce.  The guardian also argued that a guardian’s statutorily enumerated powers should be considered examples of, rather than limitations on, a guardian’s power.

The Court of Appeals of Indiana affirms dismissal of the divorce action, finding that the right to divorce depends on legislative enactments, and because neither the divorce nor guardianship statutes provide the guardian with authority to file a divorce action on Mr. Tillman’s behalf, dismissal was proper.

For the full text of this decision, go to:

Again, I believe that the need for a strong POA document is highlighted by the Tillman case.  Even though this is an Indiana case, it is instructive for Pennsylvania residents.  We can feel much better about our chances of having an Agent under a POA  document successfully bring a divorce action.  Make sure to review your POA document and insure that the necessary legal powers are set out under the document.

For more information regarding Elder Law and Estate Planning in Pennsylvania, please contact Douglas L. Kaune, esquire at 610 933 8069 or email him at Unruh, Turner, Burke & Frees, P.C. is a full service law firm which has three convenient office locations in Phoenixville,
West Chester and Paoli, Pennsylvania.  The firm primarily services clients in Chester, Montgomery, Delaware, Philadelphia, Bucks and Berks Counties,
but can represent clients throughout Pennsylvania.