SEPTEMBER 29, 2003 VOLUME 11, NUMBER 13
The guardian of an incapacitated adult is often said to have all the powers that a parent would have over an unemancipated minor child. That legalism, however, fails to give much guidance about any limitations on the guardian’s power. For example: can a guardian pursue a divorce proceeding for his or her ward?
Some definition of terms is in order. Many states (particularly those in the east) continue to use the old-fashioned distinction between “guardian of the person” and “guardian of the estate.” The former, generally speaking, has authority over the ward’s living arrangements and medical care; the latter has control over the ward’s finances.
A handful of states (notably California) use the terms “conservator of the person” and “conservator of the estate,” with the same effect but a different title. Most of the eighteen states adopting the Uniform Probate Code and a few other states have adopted the terms “guardian of the person” and “conservator of the estate.” All that leads to a certain lack of clarity in the use of the term “guardian” without more explanation.
Like Arizona, Montana has adopted the Uniform Probate Code. When Judy Deck was appointed as guardian and conservator for her father George Everett Denowh in Billings, the title and powers were similar to those she might have been given in Arizona.
Shortly after the initial appointment, Mr. Denowh filed a divorce action to end his five-year marriage to Agnes Denowh. Mrs. Denowh objected, arguing that her husband was not competent to seek the divorce, and Judy Deck sought to intervene, as guardian, to finish the divorce. The trial judge allowed her to take over her father’s divorce action as guardian.
Mrs. Denowh appealed, insisting that a guardian does not have the power to maintain a divorce action. The Montana Supreme Court agreed, ruling that there are some things that are simply too personal for a guardian to do for her ward. The state high court struck an ironic note—the power of a parent over an unemancipated minor (the Uniform Probate Code’s formulation of the relationship) can never include the power to divorce, since marriage “emancipates” a child. Marriage of Denowh, September 11, 2003.
As the Montana court notes in its opinion, Arizona is one of a half-dozen states that has ruled exactly the opposite. Under a 1993 case, an Arizona guardian does have the power to file for divorce, or to maintain a divorce action brought by the ward. It probably, however, requires appointment of a conservator to resolve property division issues.
