Elder Law: “When Long-Term Care Needs Lead To Consideration Of Divorce”

Dealing with loved ones who have become incapacitated is emotional, stressful and frustrating, and fraught with the strain of difficult decisions on behalf of your loved one. Often the personal, practical, and legal choices to continue as a couple instead of single persons are difficult to navigate for at least the reasons listed above, if not more. Financial concerns or catastrophic medical bills and long-term care can lead many couples to consider ending their marriage in order to protect each other from financial ruin. And, although divorce can be a practical choice for some, it is not the only choice. Contemplating divorce when one or both members of a couple are incapacitated deserves deeply thoughtful personal, financial, and legal insights. And, a consultation with a legal professional should be part of your consideration for a number of reasons, not the least of which is that you may be missing other options.

Some of the issues you’ll need to consider:

• Who will petition for divorce? You, the healthy spouse, may be able to petition because Minnesota is considered “no fault.”  It neither requires proof of improper behavior, nor does it require that both parties agree to divorce. One party can petition for divorce by stating that there has been an “irretrievable breakdown of the marriage.” Personal reasons and financial concerns over assets and long-term care may apply.  And, the healthy spouse may be able to petition for divorce in order to protect shared assets to both parties’ relative advantage.

But, it may matter whether your spouse is under Guardianship. The biggest issue, however, is not whether your spouse has a Guardian, but whether your spouse is able to understand the decision being made and the consequences of those decisions – this may need to be a supervised decision. A Guardian is not likely to be permitted to petition for divorce on behalf of their ward (protected person/incapacitated person) without the Court’s permission. Minnesota’s legislature currently stands with the majority of states on this topic, although there are a few states that hold the minority view. Minnesota considers divorce to be too personal a decision to be decided by a delegate decision-maker, but it may be possible for the Ward to satisfactorily demonstrate sufficient capacity to make the decision personally. (See below to link to NAELA’s recent short article by Amanda Wyzykowski on the subject of Guardians petitioning for divorce on behalf of their Wards.)

http://www.naela.org/Public/Library/Publications/Publications_Main/NAELA_News_Archive/NAELA_News_2013/Dec2013_Jan2014/Guardianship.aspx

In any case, a legal professional can assist you with understanding your options and how the options may work.

• What kind of assets do you and your spouse have?  What type of assets you and your spouse own may matter. Some types of assets are excluded from counting toward eligibility for public assistance. Some are protected from being used for reimbursement for expenses paid. It is well-worth discussing these assets with a legal professional to determine how they will be categorized and the possible need to change the type of assets you hold.

• Will your spouse need Medical Assistance in the future? In Minnesota, spouses have an obligation to their partners for medical expenses and long-term care. This is a common reason that some consider divorce. But, it’s not necessarily that straightforward. Medical Assistance and county support rules are complex and navigating them can be very confusing. If you’re married, the County offers some protections for the healthy spouse, like the Community Spouse Resource Allowance (CSRA) that allows the healthy spouse to protect a limited amount of certain types of assets (there is a cap on this amount, however, that changes every year – 2013 is just under $116,000). But, if you divorce, under certain circumstances, the County may be able to challenge a divorce decree. So, types and amounts of assets as well as timing can be crucial.

Navigating these waters on your own can be emotionally stressful, complicated, and frustrating.  There are many types of professionals who can assist you with the emotional stress of this situation.  But, consult an Elder Law professional to assist you in thinking through the practical and legal issues you may encounter.

ALL READERS:  This blog is not, nor shall it be deemed to be, legal advice or counsel. This blog does not create an attorney-client relationship with any reader.  It is designed to encourage thoughtful consideration of important legal issues with the expectation that readers will seek professional advice from a licensed attorney.