A person who becomes unable to manage their own legal affairs in Michigan may have one of two people appointed by the probate court to help. First, the judge could appoint a full guardian who takes control of the incapacitated adult’s personal needs such as residency, medical care and daily programming. Second, the judge could appoint a conservator who takes control of the incapacitated person’s property such as real estate, bank accounts and regular income for management. Both entities have distinct roles but they would manage the entirety of the incapacitated person and his possessions together.
Both the guardian and the conservator play a role in the incapacitated person’s legal affairs. Does either have the authority to file for divorce on behalf of the incapacitated spouse? Can a spouse even pursue a divorce if he or she is unable to do so on his or her own behalf?
The Michigan Court Rules do offer guidance on this issue. MCR 3.202(A) provides that, in domestic relations action (including divorce), incompetent persons can sue and be sued. The court rules further identify three types of people who can play a role in the incapacitated person’s legal actions.
- “If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.” MCR 2.201(E)(1)(a).
- “If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.” MCR 2.201(E)(1)(b).
- “If the minor or incompetent person does not have a conservator to represent the person as defendant, the action may not proceed until the court appoints a guardian ad litem. . .” MCR 2.201(E)(1)(c).
These identified persons are defined under the law as:
- Conservator: A person appointed under MCL 700.5401 through MCL 700.5433 of the Estates and Protected Individuals Code by the probate court to manage the incapacitated individual’s property.
- Next Friend: A person acting on behalf of another party in bringing a lawsuit or participating in a legal proceeding. This person is appointed by the court or appears by virtue of some other authority (e.g. parent of minor or durable power of attorney). This person appointed is not made a legal guardian or conservator and is not granted any additional rights over the incapacitated person other than pursuing the lawsuit. NEXT FRIENDS ARE ONLY APPOINTED TO PLAINTIFFS.
- Guardian Ad Litem: A person appointed by the court to act on behalf of a minor or incapacitated person in a lawsuit or proceeding. Despite the word “guardian” in the name, the guardian ad litem is NOT the same thing as a legal guardian and does not have any legal authority outside of making decisions about the instant legal action. GUARDIAN AD LITEMS ARE ONLY APPOINTED TO DEFENDANTS.
The Michigan Court Rules permit a conservator, next friend and guardian ad litem to participate in a divorce action for an incompetent person, but it does NOT explicitly permit a legal guardian to initiate or become involved. However, the Michigan Court of Appeals has ruled several times that a legal guardian may file for divorce on behalf of his or her ward.
- Smith v Smith, 125 Mich App 164; 335 NW2d 657 (1983) – Minna Smith’s temporary guardian (as appointed by the Oakland County Probate Court) filed for divorce on Mrs. Smith’s behalf from her spouse. The husband objected and argued that a mentally incompetent spouse cannot bring a divorce action by her guardian. The circuit court agreed and dismissed the divorce petition. However, the Court of Appeals determined that the existing court rule at the time, GCR 1963, 201.5(1) provides: “Whenever an infant or incompetent person has a guardian of his estate, actions may be brought and shall be defended by such guardian in behalf of the infant or incompetent person.” Id at 166. The Court of Appeals recognized that this rule was not observed in a majority of states, but it is was expressly allowed nevertheless. Therefore, the guardian’s divorce filing was permitted by law.
- Houghton v Keller, 256 Mich App 336; 662 NW2d 854 (2003) – A wife, through her legal guardian, files for divorce from her husband. Husband objects to the filing on basis that legal guardians have no authority to file and MCL 552.6 restricts the power to dissolve a marriage exclusively to parties. The trial court allowed the divorce action to proceed and enter judgment. The Michigan Court of Appeals determined that, since MCR 2.201(E) allowed next friends and guardian ad litems to participate in divorce proceedings, then a legal guardian was allowed to file. In addition, MCL 552.6 (“A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language”) does not stand for the proposition that parties must file on their own behalf. If the Michigan Legislature intended to prohibit guardians from bringing divorce actions on behalf of spouses, it would have expressly provided for this. Therefore, the judgment of divorce was affirmed. (NOTE: it appears from the court’s opinion that the roles of “legal guardian” and “guardian ad litem” were confused by the judges who thought they were one and the same. In addition, the guardian ad litem would only apply to a defendant when the incompetent person in this case is the plaintiff).
- In re Burnett Estate, 300 Mich App 489; 834 NW2d 93 (2013) – In a bizarre case, two co-guardians for the plaintiff-wife filed for divorce from the defendant who had a sex change and now identifies as a woman. The defendant opposed the divorce on three grounds. First, the divorce could not be granted since Michigan law at that time did not recognize same-sex marriage or divorce. Second, the court rule relied upon in Smith v Smith had been changed and legal guardians expressly did not have authority to file (MCR 2.201(E) is restricted to conservators and next friends to file). Third, MCL 552.11 provides that “[a]n action for a divroce may be brought by a wife or a husband…”, so the statute does not explicitly allow for guardians to file. The Michigan Court of Appeals once again determined that “contrary to defendant’s argument, the current court rules specifically allow a guardian or conservator to bring an action for divorce on behalf of a mentally incompetent spouse.” Regarding MCL 552.11, the Court of Appeals relied on its holding in Houghton v Keller to determine that if the Legislature wanted to prohibit guardians from filing, it would have expressly provided for such. Finally, since the marriage contract was validly entered into by a man and a woman, the circuit court retained jurisdiction to dissolve it even if one spouse later changes their gender identity. Therefore, the judgment of divorce was affirmed.
It appears under current jurisprudence that both legal guardians and conservators have the power to file for divorce on behalf of their wards. However, a future Michigan Court of Appeals panel may determine that the plain language of MCR 2.201(E) does not allow legal guardians to file and therefore render the divorce action invalid. A divorcing party looking to avoid becoming this “test case” may be well advised to direct their conservator or next friend to handle the filing as required by the Michigan Court Rules.
If you have any questions about the authority of guardians and conservators or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.