Can A Person In Florida With Alzheimer's Or Dementia File For Divorce?
In Florida, with a large number of elderly retirees, this is a common issue. However, it’s also legally tricky.
Some individuals with Alzheimer’s disease or dementia who want a divorce can file. Just because a person has been diagnosed does not mean they are mentally incompetent yet.
If a person who has been diagnosed with one of those diseases files for divorce and he or she is able to communicate during the procedure and make sound decisions, the divorce should not be any different than any other person’s divorce.
However, if a person has been diagnosed with Alzheimer’s or dementia and is starting to show serious signs of mental issues related to the disease, divorce can be harder. In order to sue for divorce, a person must be mentally competent.
In many cases involving a person with Alzheimer’s or dementia who is starting to slip, a loved one will step in and ask the probate court to declare the individual as incapacitated, and to appoint a guardian.
This is called a guardianship proceeding. A guardianship takes away the legal rights of the individual whom is declared incapacitated.
In most cases, if a guardian is appointed, the incapacitated individual loses his or her right to sue, including for divorce.
However, the guardian may be able to sue for divorce on the individual’s behalf.
One quirk in Florida law is that if a person has been declared incapacitated, there is a three year waiting period before the individual can be divorced.
The law is intended to protect a mentally incompetent person from being divorced by a competent spouse and leaving them no ability to defend themselves.
Any divorce involving a person who is mentally incapacitated is tricky, and it’s advisable to get legal counsel through the process.