Here is Michigan's legal definition of an incapacitated individual as set forth in the probate code known as EPIC [Estates and Protected Individuals Code]:
Incapacitated individual means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.Having a spouse with a guardian is a situation we have seen here at Clarkston Legal, both in our family law practice as well as in our probate docket. The question is, if a spouse to a divorce proceeding needs a guardian, who should serve in that capacity?
The individual nominated to serve as guardian can be a parent, sibling, or even a trusted friend. The nominated individual can also be selected from among the corps of active Public Administrators in the county taking direct appointments from the probate court judges.
This specific guardianship issue arose quite a while back in a 1998 divorce case from the Oakland County Family Court that was decided by the Michigan Court of Appeals in 2003. The published thus binding case, Keller vs Keller, affirms the proposition that a spouse previously found incapacitated by the Oakland County Probate Court, can nevertheless direct her guardian to initiate, prosecute, and conclude divorce proceedings.
Although a protected individual under guardianship lacks capacity to enter into binding contracts, including a settlement agreement or consent judgment of divorce, the guardian functions as an "alternate decision maker". Those decisions can include the myriad elections involved in the completion of a divorce proceeding.
Therefore, the guardian determines when alimony is sufficient, how long alimony should be paid, negotiates the property settlement, even determines a parenting schedule if the couple has minor children. After the divorce, the guardian is also in charge of arranging a proper placement for the newly divorced ward.
If you know someone who is in a bad marriage, and who is not capable of managing their own affairs due to a suspected incapacity, contact our law firm for a free consultation.