Can a Person With Dementia File Divorce?

January 22, 2024by Adam Sacks

What is Dementia?

Dementia is a term used to describe a group of symptoms that affect a person’s ability to remember, think, and make decisions. It is not a specific disease, but rather a syndrome that can be caused by various conditions, such as Alzheimer’s disease, vascular dementia, and Lewy body dementia.

People with dementia may experience a decline in cognitive abilities, including memory loss, difficulty with language and communication, and impaired reasoning and judgment. They may also exhibit changes in behavior and personality, such as agitation, aggression, and delusions. This is what causes people to ask if a person with dementia can file for divorce.

About 5% to 8% of all people over the age of 65 have some form of dementia, and this number doubles every five years above that age. It’s estimated that as many as half of people 85 years of age and older have dementia. [1]

 

Can a Person with Dementia File for Divorce?

A person with dementia may still have the capacity to make independent decisions, including the decision to seek a divorce. In many cases, their ability to understand and navigate the legal process of divorce may be compromised.

In situations where a person with dementia wishes to file for divorce, consider their capacity to make such a decision. This typically involves a thorough assessment of their cognitive abilities by a qualified healthcare professional. If it is determined that the individual cannot understand the implications of divorce and make informed decisions about it, then they may not be able to file for divorce on their behalf.

A legal guardian or family member may need to step in to make decisions on behalf of the person with dementia. This could involve seeking legal guardianship or power of attorney to ensure that the individual’s best interests are protected. [2]

Approach the issue of divorce with sensitivity and empathy when talking with someone with dementia. The emotional and psychological impact of divorce can be especially distressing for individuals with cognitive impairment, and their well-being must be taken into account throughout the process.

Can a Person with Dementia File for Divorce?

 

What Rights Does a Person with Dementia Have?

One of the primary rights that a person with dementia has is the right to be represented by legal counsel. Individuals with dementia can work with a lawyer who will advocate for their best interests and ensure that their rights are protected throughout the divorce proceedings. Individuals with dementia have the right to participate in the legal process to the best of their ability, and their wishes and preferences should be taken into consideration.

Another important right that individuals with dementia have is the right to a fair and equitable division of assets and property. Even though their cognitive functioning may be impaired, individuals with dementia still have a right to receive their fair share of marital assets. Legal representation will ensure that they are not disadvantaged in the division of property due to their condition.

Individuals with dementia have the right to be treated with dignity and respect throughout the divorce process. This includes being given the opportunity to express their thoughts and feelings, as well as being protected from any form of abuse or exploitation.

Individuals with dementia may also have the right to request spousal support or maintenance if they are unable to support themselves financially due to their condition. This can help ensure that they can maintain their quality of life and access the care and support they need.

 

Contact Sacks & Sacks law office today to schedule a consultation and get the assistance you need in filing for divorce while living with dementia.

 

Source:

[1] Professional, C. C. M. (n.d.). Dementia. Cleveland Clinic. https://my.clevelandclinic.org/health/diseases/9170-dementia

[2] MSN. (n.d.). https://www.msn.com/en-us/money/retirement/can-a-person-with-dementia-get-divorced-the-legal-and-financial-concerns/ar-AA19YeOR

by Adam Sacks

Adam Sacks is lead Family Law Attorney at Law Offices of Sacks & Sacks, P.A. in Jacksonville, Florida. He has a BA in Psychology from 1994, and received his Juris Doctor Degree in 1999 from the Western Michigan University Cooley Law School.

Sacks and Sacks Law
1646 Emerson St. Suite B Jacksonville, FL 32207

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