What happens when a person becomes incapable of managing their affairs? Can their guardian raise divorce proceedings?
When an adult lacks the capacity to make decisions or take action in relation to their property, finances or personal welfare, a guardian may be appointed to act on their behalf. When a guardian is appointed by the court, they are given specific functions and duties they have in relation to that person’s affairs, including the general power to raise or defend any court actions.
But what happens when a guardian seeks to divorce on behalf of a person with incapacity? Is it within their general powers to do so, or must they have a specific power? The Sheriff Court considered this very issue in GWS qua Guardian of JH v KH.
In this case, a husband and wife had separated, but only a few years later the husband was involved in an accident that caused him very serious injuries. Because of the extent of his injuries, he was no longer capable of making decisions over his own affairs, leading to the appointment of a guardian. The guardian decided to bring an action of divorce on behalf of the husband in order to manage the husband’s financial affairs.
The wife did not want to be divorced and argued that the guardian had no general power to bring the action and end the marriage. According to the wife, if a guardian wishes to divorce on behalf of an adult without capacity, they must apply for a specific power under section 64(1)(c) of the Adults with Incapacity (Scotland) Act 2000.
The Sheriff agreed with the wife and held that to raise an action of divorce, a guardian must have been granted the specific power to do so before raising divorce proceedings. Although guardians have capacity to act on behalf of the adult, they can only do so insofar as authorised by their powers. As divorce did not fall under a general power to litigate, and the guardian in this case had failed to apply to the court for the power, the case had to be dismissed and the divorce refused.
This case is a strong reminder that guardians cannot rely on the general power to raise or defend court proceedings when seeking to pursue divorce proceedings in the name of an adult lacking capacity. In order to do so, they must first apply to the court for certain and specific powers under the 2000 Act to pursue or defend an action of declarator of nullity of marriage or of divorce or separation. Only once these powers are granted will they be able to raise an action on behalf of the adult with incapacity.
Adults with Incapacity Advice Scotland
At McCarthy Law, we can help you with any guardianship or capacity issue. Whether you are concerned about a family member or looking for advice about managing a loved one’s affairs, we can help. Contact us today.
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