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Guardian Not Permitted To Maintain Divorce Proceeding

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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.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.