Legal Question in Elder Law in Maryland

Sibling trying to divorce parents using POA

I found reference on the world wide web to the assertion that an agent (aka attorney-at-fact, principal) can't prepare a Will, vote or seek a divorce on the principal`s behalf at http://www.durable-power-of-attorney.com

Needless to say, I have a sibling with a Durable Power of Attorney (granted by my father before he was declared legally incompetent) who is now trying to divorce my parents. Is there some general legal reason (eg. constitutional, statutory, etc) that prevents someone (like my sibling) from using a Durable Power of Attorney to do just that (eg. divorce my parents). I am specifically looking for some legal doctrine, principal of law and/or previous judicial precedent that prevent a sibling from divorcing my parents!

It is hard to believe that someone other than my mother and father could divorce the two of them. After all, it was my mother and father who decided to get marrired in the first place. How could someone else decide that two people shouldn't be together and then seek a divorce on their behalf?


Asked on 10/19/04, 11:19 am

1 Answer from Attorneys
Alan Albin Alan S. Albin, Attorney at Law

Re: Sibling trying to divorce parents using POA

Hmmmm....this is an interesting question, although I must admit, I've never come across exactly this situation before.

Divorce is an equitable proceeding. That is, anyone seeking a divorce must file a legal complaint with the court--just like any other lawsuit. If there are jurisdictional grounds, the court will have power to consider whether the divorce should be granted. Even if there is jurisdiction to consider the case, whether or not a divorce is granted, and on what terms, is up to the judge hearing the case.

If your sibling attempts to file a complaint for divorce on behalf of your father, I imagine that the judge will scrutinize the action very carefully. Is this something that your mother agrees to? Is this something that your father agrees to? Just because dad is incompetent does not mean he is completely unable to state an opinion. The court will also carefully scrutinize your sibling's motivations for taking this action. I imagine you would have a chance to be heard by the judge, if you oppose this action for some reason.

While I do not endorse your sibling's conduct, it is conceivable that there might be a situation where a person who happens to be incompetent would need some way to initiate a divorce proceeding, for example, if the incompetent parent is perhaps being physically abused by a spouse.

In all likelihood, however, your sibling will at a minimum need to obtain guardianship powers through a separate equity proceeding before being allowed to initiate a divorce. This is a proceeding in which the court appoints a guardian for an incompetent person after an investigation and report by a court-appointed attorney has been conducted, all interested people (including children of the incompetent) are given a chance to provide input, and a hearing has been held.

If you are concerned that your sibling is abusing his/her legal authority, you need to retain an attorney immediately to ensure your parent's rights are protected.

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Answered on 10/19/04, 10:03 pm


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