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Divorce & Guardianship: On getting control over your “incapacitated” ex-spouse

Guardianship of an ex spouse

Anybody, even a total stranger, can petition the court for guardianship of another person no matter what the person’s age. So, even if you are separated from, or divorced from your spouse, and you feel that a situation exists such that the individual over whom you seek guardianship is “incapacitated” I see nothing in the statute at this point that would stop you from seeking court permission to control the person physically, and to control the person’s property, and to otherwise control the person’s life.

I mean, you can petition all you want. But I am not saying you are going to get that permission to control this person. It’s up to the court. A guardian is a fiduciary. If you had a particularly combative and antagonistic relationship with your spouse, it is unlikely that your move for guardianship would be granted. To the extent you had a loving and amicable relationship that just happens to have ended in divorce, you stand a better chance – particularly if it was the wish of your ex spouse that you serve as guardian. But keep in mind that “guadianship” is not a cunning way of getting your hands on property and cash that you couldn’t get legitimately in a divorce settlement.

You don’t have to be related (look at Brooke Astor and Annette de la Renta) to someone to seek a guardianship over them, btw. And you don’t have to be married to them or to have ever been married to them. The statute does not have exceptions for former spouses, so it doesn’t matter if you are divorced. It is more about the nature of the relationship, and whether you can properly administer the needs of the AIP (Alleged incapacitated person). Guardianship is governed by the Mental Hygiene Laws which were amended in New York in the 90’s. The test the court uses to determine if someone needs a guardian is:

First, that the appointment is necessary to manage the property or financial affairs of that person, and second, that the individual either agrees to the appointment or that the individual is incapacitated as defined in N.Y. Mental Hygiene Law section 81.02 (b).

There are tons of cases on the issue of guardianship such as the Brooke Astor case, of course, and others like:  In Matter of Frances Mayer, 207 AD 2d 133; and

In matter of Edda Wogelt, 223 AD 2d 309, and

In matter of Anne M. O’Hear 219 A.D. 2d 720,

amongst others.

The court is going to give great weight to the wishes of the person who is alleged to be “incapacitated.” And to the extent that there is a “less restrictive means” to accomplish the objectives other than “guardianship,” the court is statutorily required to consider those means.

So it all comes down to what the particular story is in your case. Each case is different and there is no blanket rule. But just keep in mind that guardianship is very intense. It basically takes away a person’s constitutional right to be free and private and it takes away their self-determination and the court will be very careful in awarding guardianship–particularly to an ex-spouse I would think.

A lot of times, there are “cross-petitioners” –others in the person’s family (such as adult children, parents, friends)– who petition to say that they should be the ones who have guardianship, or they may have a power of attorney and there is no need for a guardianship. It’s a very complex issue, this area of the law, and one that I actually find very interesting.

But the short answer is yes. It is possible to acquire guardianship over a spouse, an ex-spouse or a soon to be ex-spouse. How probably is it?  Well, that’s a whole other question that I don’t think I have the time to answer right now.

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