A recent Court of Appeals opinion, McGee v. McGee, 2013 relying on a 1950s Indiana Supreme Court decision, held that a guardian cannot file a divorce petition for a ward even if the Guardian has a legitimate reason for doing so. The husband was in a nursing home and the guardian suggested that the ward’s asset needed to be protected. The court, however, noted:
While the statutes governing dissolution and guardianship in Indiana have evolved
since 1951, when Quear was decided, it is still the case today that neither the current
Indiana statutes governing dissolution of marriage nor those governing the guardianship
of incapacitated persons provide a means for a guardian to file a petition for dissolution
of marriage on behalf of his or her ward.
Dissolution of marriage actions in Indiana are
governed by Indiana Code Title 31, Article 15, which provides that a party who seeks to
initiate a dissolution of marriage proceeding must file a verified petition for dissolution.
Ind. Code § 31-15-2-5. Indiana Code section 29-3-8-4 provides that the guardian of an
incapacitated person may take action and make decisions for the benefit of the
incapacitated person. For example, the guardian may “invest and reinvest the property of
the protected person,” may exercise control over the incapacitated person’s business or
income, and, if reasonable, may “delegate to the protected person certain responsibilities
for decisions affecting the protected person’s business affairs and well-being.” Neither
statute, however, provides the guardian with the right to file a petition for dissolution on
behalf of the incapacitated person
The probate commission is thinking about a legislative solution to this problem. There are questions about whether a power of attorney could file a divorce petition; the thinking is probably not.