Dementia, Divorce, and Incompetency to Stand Trial

We have all heard the phrase “not guilty by reason of insanity.” Most of us have at some point used the phrase “insanity defense” jokingly when talking about what we’d like to do to someone who has offended us. Likewise, a criminal defendant can be found incompetent to stand trial, which means that they are so mentally impaired that they can’t meaningfully participate in their own trial. Defendants have a constitutional right to a fair trial and it isn’t fair to make them defend themselves when they don’t understand what is going on. As a criminal defense lawyer, I know what to do when a defendant doesn’t seem to be able to help in his own defense, or if they were truly delusional at the time of the alleged crime. We get a psychiatric evaluation and expert opinion, and follow established procedure.

Unfortunately, it isn’t so easy when you are in a civil situation. In Georgia, where I live, there is no law that prevents people who are impaired – even ones who have been adjudicated by a court to be incompetent – from filing suit or defending suit. For example, you can sue someone with full blown dementia, and they are somehow supposed to defend that suit.

More to the point, and more dangerously, someone who has been adjudged to be incompetent is not prevented from filing a suit themselves. Someone who suffers from clinical delusions or paranoia is not prevented from suing someone for behavior that only exists in the persons delusions.

This is especially difficult when it comes to divorce. Along with dementia often comes a difficulty in reasoning, and an apparent talent for making poor decisions. Many dementia patients refuse to acknowledge their own diagnoses, or are unaware of them. Caring for someone with dementia often means doing something that will make them mad. For example, if you are married to a man with dementia, you will likely have to be the one to tell him (and enforce the fact) that he can no longer drive a car. You may have to take away his credit cards. There are many reasons why he is likely to be angry with you and/or resent you. But you have to do it in order to care for him.

So what if he decides he’s had enough of you being bossy, and decides to divorce you? Kentucky courts are about to decide this issue. In the Kentucky case, a man with dementia, whose wife took all the proper steps to become his guardian through probate court, has filed for divorce against his wife. To an outside observer, this seems like a bad idea. If he is so impaired that a court has declared that his wife should be his guardian in the same way that she’d be the guardian of a minor child, how can he decide to make such a life altering decision?

This is the subject of much debate. After all, is he not entitled to his feelings? As a grown man, should he be required to spend his life with someone he doesn’t like, whatever the reason? And who knows what their relationship was like prior to his diagnosis. Maybe it wasn’t so hot then. But legally speaking, marriage is a contract, and therefore you need to be competent to contract to get into a marriage. Shouldn’t you be competent to be able to knowingly break that contract? On the other hand, does that mean a person with dementia is stuck with an abusive spouse? Very few states (10) have any kind of legal mechanism for dealing with this situation.

These are not easy questions and there are no easy answers. I will be following the Kentucky case to see where they land.

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