According to the National Center for Health Statistics, divorces among the elderly (ages 65 and up) have nearly tripled since 1990, at a rate of approximately 6 out of 1,000 married people in 2015. These figures aren't surprising considering that divorce rates have climbed steadily for all age groups, along with the significant increase in life expectancy for Baby Boomers compared to previous generations.
Divorces for senior citizens present considerable problems for the courts when the litigants have serious health issues that could effect their ability to act on their own behalf. Take power of attorney designations, for examples, also known as POAs. A power of attorney is a document through which a person can appoint someone to act on his or her behalf in financial and legal matters. The powers that a POA has depends on the wording of the document, and whether it is a regular POA or a durable power of attorney. The latter gives the agent the right to continue acting on that person's behalf even if he or she is incapacitated or incompetent, which is important to consider with very elderly individuals.
It may seem like a POA basically gives the agent the power to do just about anything, based on the wording, but there are legal contexts in which the individual is expected to act for themselves. Divorces, for example, are proceedings in which a litigant must be legally declared incompetent before an agent can act on their behalf. The court's stance on this issue is clearly demonstrated in cases like Marisco v. Marisco, in which a litigant was barred from appearing in her father's divorce suit. Her father had designated her as his attorney-in-fact over his financial and legal matters, including the right to “institute, prosecute and defend any actions or proceedings brought in any court.“
In 2012, the daughter (from a former marriage) had signed a counterclaim to a divorce complaint filed by her father's wife. The wife argued that the husband was not incompetent, and that his daughter had a vested interest in the outcome of the divorce since she was likely to be appointed as the executor of his estate. The judge agreed, stating in his ruling that “a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order.”
This is an important ruling for families with elderly relatives, or anyone who is designated as someone's attorney-in-fact. While it may seem like an unfair obstacle for those seeking to protect an elderly person's interests, most senior citizens can make competent decisions for themselves with help from an experienced attorney. An attorney can also file for a declaration of incompetency or a guardian ad litem if a litigant truly cannot act on his or her own behalf. For more information on your divorce rights and legal options, please speak with the attorneys of Villani & DeLuca, P.C.