Competency and Gray Divorce

It’s a fact of life that medical issues become more and more important as people get older. One of the significant medical issues that can affect a court case is competency, a person’s ability to mentally understand what is going on in court and make decisions for themselves.

In a gray divorce (divorce over 50), you may find yourself in a situation where one party in a divorce case is potentially not competent to make reasonable and sound decisions during the trial. 

What’s Involved In A Competency Determination

Competency in a court case isn’t just determined by a single factor or someone’s stories about how they are behaving at home. There is a legal way to decide whether someone is competent, able to participate fully in their own court case.

When considering competency in a family law case, you need to consider four distinct questions:

• Is the person capable of communicating a choice? Can they make reasonable decisions for themselves?
• Does the person understand what is happening in court? Do they understand the orders of the judge or the advice from the attorney?
• Does the person understand (or appreciate) the consequences of the court decision? Or does it appear that they are in denial of the situation and what might happen?
• Is the person capable of weighing the pros and cons of a decision in court? Can they make a decision based on their own goals, concerns, and values?

Competency and Gray Divorce

If a spouse is not competent to participate in a divorce case, there are several options for the court to consider. First, it is possible that the spouse may have filed a durable financial power of attorney. This is a specific power of attorney that allows someone to make financial decisions for you in case you become incapacitated. If it’s durable (meaning it stays in effect after you are incapacitated), then someone may speak on your behalf during your divorce case.

The court may also choose to appoint a GAL (guardian ad litem). A GAL is a third party that is court-appointed and whose job it is to advocate for the best interests of the client who cannot speak for themselves. In addition, any adult children can assist the court in speaking for the incompetent party.

Your Best Resource Is An Attorney

If you are dealing with a gray divorce and there are competency issues, your best resource is going to be an experienced attorney, who can help to navigate both the issues related to the divorce and the side issues related to the competency of one or both spouses.

Competency determinations typically involve getting a doctor’s determination as well as providing proof from current and former medical records. Your attorney can help you in putting together the appropriate documentation for court.

If you are dealing with competency issues and need a family law attorney, Family Matters Law Group is ready to hear your story and assist you. We know competency issues are tough, but we have years of experience helping clients throughout the metro Atlanta area.

Gray divorce may not be what you had in mind for your later years, but we can help make the transition to your new life easier. Competency issues can arise in a gray divorce. Let Family Matters Law Group help. Contact us via phone or online today.