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If a spouse is incompetent, can a guardian initiate a divorce?

In Illinois, when an adult is found by a court to be incompetent to manage his or her own affairs, a legal guardian is appointed to do so. The person who has been declared incompetent is referred to as a "ward," and the guardian's legal duty is to act in the ward's best interest. So what should happen when a guardian determines it would be in the ward's best interest to get a divorce? Would a guardian have the right to file for divorce on behalf of the ward?

The question was first addressed by the Illinois Supreme Court in 1986, in a case called "In re Marriage of Drews." In that case, the court decided that the dissolution of marriage was too personal a decision for a guardian to make. For one thing, at that time, Illinois divorce law required a finding of fault, which seemed unjust in such cases. Second, how could a guardian know whether the ward would want the divorce if he or she was unable to decide?

The Drews decision turned out to be problematic, however, since a competent spouse does have the right to divorce an incompetent one. If a guardian can't file for divorce on a ward's behalf even when it is clearly in his or her best interest, the result would be to "grant the competent spouse 'absolute, final control over the marriage,'" the court said, citing Diane Snow Mills in an article in the Journal of the American Academy of Matrimonial Lawyers.

In October of last year, the Illinois Supreme Court overruled its Drews decision in Karbin v. Karbin ex rel. Hibler. Ultimately, the court decided, there are situations in which the ward's best interest is clearly served by divorce. "Because under the Probate Act the guardian must always act in the best interests of the ward, when a guardian decides that those best interests require that the marriage be dissolved, the guardian must have the power to take appropriate legal action to accomplish that end," the court wrote.

This decision clarified just what legal authority guardians have over adult wards, which had been in some dispute. In the past, the courts had upheld a guardian's authority to make decisions about some serious and permanent issues -- among them whether life support should be continued for the ward and whether the ward should be involuntarily sterilized.

Now that Illinois allows no-fault divorce, why should the decision to dissolve a marriage be off limits? As long as a hearing is held to ensure it's actually in the ward's best interest, the court said, the guardian should have this authority.

"This ensures that the most vulnerable members of our society are afforded fundamental fairness, equal protection of the laws and equal access to the courts," the court wrote in Karbin.

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