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Guardian may not file for divorce on behalf on incapacitated adult

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Citing a 1951 Indiana Supreme Court case, the Court of Appeals has affirmed that the law does not allow a guardian of an incapacitated person to file a petition for divorce on behalf of the incapacitated person.

Harry and Virginia Tillman were married in 1998. A prenuptial agreement stated the husband would provide for his wife during their marriage “reasonable support, care and maintenance.” The two are now both considered incapacitated and Harry Tillman’s daughter, as his guardian, filed a petition for divorce on behalf of her father. He was living in a nursing home and she argued he needed his money to pay for his care. Virginia Tillman’s guardian filed a petition to enforce provisions of the prenup, and later filed a motion to dismiss the petition for divorce. The trial court granted the wife’s motion based on Quear v. Madison Circuit Court, 99 N.E.2d 254 (Ind. 1951).

In Quear, the justices held that an insane person can’t bring an action for divorce because he or she can’t consent to the filing of the complaint. It also held the statutes on divorce and guardianship do not allow for a guardian to file the petition for dissolution.

“Neither the current Indiana statutes governing dissolution of marriage nor governing the guardianship of incapacitated persons provide a means for the guardian of an incapacitated person to file a petition for dissolution of marriage on behalf of the incapacitated person,” Judge Paul Mathias wrote in In Re the Marriage of: Harry L. Tillman v. R. Virginia Tillman, 87A05-1212-DR-619.

“Some might argue that the intervening decades of higher and higher divorce rates and the creation of federal and state programs to assist the elderly have radically changed civil society’s notions concerning what the vows of ‘for better and for worse’ mean. Therefore, for some, this might seem an appropriate time to revisit Quear,” he continued. “But Quear relied on the public policy pronouncements of the General Assembly within Indiana’s divorce and guardianship statutes, and those statutes have not changed appreciably regarding the issue before us since Quear.”

 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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