Both father & step-mother have dementia. They've lived apart for more than a year. Can they get divorced?

Given the dementia and living apart, I think you'd best be served by consulting a matrimonial (divorce) attorney as there are some complicating factors to this situation.

You might try calling your Area Agency on Aging and asking if they have a resource who could give you some advice on the legal aspects of this.

I've been thinking about this. What will the advantage be if they are divorced? Can't they sell the house without being divorced?

sle2000, being that your Dad and your Step-Mom have dementia, it depends on how far along the dementia. If one is unable to follow a legal document, then divorce may be out of the question. As mentioned by GardenArtist above, check with a Divorce Attorney.

Ok, how are the Power of Attorneys for the couple? Time for both POA's to step in and handle the financial aspects for their own parent.

As geannegibbs had asked above, can't they sell the house without being divorced? Divorced isn't inexpensive, as both parties need to obtain their own Divorce Attorneys, and with dementia in the picture that can complicate the situation.

freqflyer, I sent you a pm.

 “There is a potential solution, and that is Judicial Separation. A Judicial Separation is a legal separation, but it is not a divorce. This will allow you to start financial proceedings and thereby protect your share of all the matrimonial assets.

A Decree of Judicial Separation has three main effects:

The spouses are no longer obliged to live together
The Court can divide the matrimonial assets (including property), just as it can in divorce
The Decree has an impact upon your Will, just as it does in divorce. This means your spouse no longer takes any benefit unless a new Will is made specifically stating that is to be the case
If your marriage has come under strain because of dementia but you do not want a divorce, a Judicial Separation could be the best way to proceed. It is a more amicable approach, which may be important if you feel the effects of dementia are not your spouse’s fault. Yet it still enables you to protect your finances.

A Judicial Separation may also be an option if you are going through a divorce and your ex-partner gets dementia, or already suffers with dementia.”

This is from a legal site in the UK. Don’t know if it would apply here.

I doubt it. Neither can make an informed decision.

Consult an attorney who specializes in elder affairs wherever you/they live.

I see no advantage in them getting divorced. If they are no longer able to live in their house, then the house should be sold. As long as somebody has POA and can sign the documents, the house can be sold ASAP.

As others have said, it would be a good idea to consult an elder attorney in the county where the house is located or where they currently live.

Hi. Such a difficult situation you are in. My heart goes out to you. I wonder if establishing a guardianship/conversatorship might help you accomplish the things you are trying to accomplish. It depends how they work where you live. As someone else suggested re: the divorce option, I do believe some legal guidance may be in order here. Wishing you strength, peace, and clarity.

If the house is jointly owned, they both have to sign the sales contract, even if they are divorced. Do they each have a POA to sign for them? The divorce decree, if needed (and it very will might be) will spell out how to split the proceeds.

You need to see an elder care attorney as a divorce might not solve your situation. It is my understanding (I could be wrong) that even if they were divorced that issues could arise if either one needs Medicaid in the future. Medicaid will do their 5 yr. look-back which would include the ex-spouse's assets. This would mean that your father's assets might be expected to be used for his ex-wife's care before Medicaid kicks in. I would suggest the guardians or poa's for both spouses meet with an elder care attorney to establish a care plan.

It is indeed a nightmare.

How long were they married?
How was their separation over one year ago brought about?
Did SM's family move in with her, while your father left to come and live with you? - in other words, are one or more of her children living in the house which needs to be sold?
Is either still capable of giving consent, notwithstanding their dementia?

In any case, if either or both parties lack the legal competence to give consent I can't see how they could divorce.

But long before then, their needs as individuals and their rights respecting the assets of the marriage need to be assessed jointly.

Could you investigate finding a lawyer who might guide you on how to make that happen?

While it does make sense to me as well to avoid divorce expense and proceedings time if possible it sounds like taking charge of finances and divvying up assets may not be as simple as it would be if there weren't 2 families involved. The second marriage later in life thing may be a big complication unless they prepared for this before Dementia set in. Do they each have a POA? Are they the same person or do they each have one from their first families? Are you able to work together? My guess is based on what you wrote, if they have POA's they are different and not in helpful communication. If the vehicle was your dad's how did his wife's family sell it? Were both names on the title with "or"? If so how is the house titled? Do both spouses need to sign to sell the house or can just one of them do it and if it only takes one is that because it's in one name or because they set it up so either of them have the authority? I'm concerned that if they set everything up so that either of them could take care of things individually her family might be working on selling the house already. I am not an attorney and it may vary slightly based on where you are but if they each have POA's that aren't working together you may end up in the same position two divorcing spouses might having to sue the other for assets and especially when talking about needing funds to care for an elderly patient it's going to be harder to get your fathers fair share of proceeds from the sale of property than having the cash in hand. You might want to speak to an attorney immediately and see if there is a way to freeze everything before the money and assets disappear. I cringe as I say this because I realy hope and prefer to think that your step mother's family has no intention to shut him out or take more than her fair share of the assets. They probably want him cared for as well and are simply as in the dark as you are about how to go about this and selling some of the assets was simply about preventing her from trying to drive the car or they had an immediate need for funds to care for her and have no plan to hide those funds. It's hard though not knowing the relationship between the families, how the couple has their fiances set up, who brought what into the relationship or how long they have been together and how they set up their household. Did they buy the house together for instance or did one of the families grow up there? I don't mean to suggest or set up an adversarial approach and it's more likely you are each trying to care for your parent as best you can and the time to contact the step parent and family just hasn't presented its self in the chaos, we all know how that goes but I do want to urge you to contact them and feel it out, make sure you and your dad are protected.

If either is incompetent then a divorce can not be done - some places even have a law stating that so that a spouse can't be 'thrown away' - why do it as you're just giving money to lawyers for paperwork - a legal separation may be possible but that could be iffy too - RUN DON'T WALK TO YOUR LAWYER ASAP

Here there is a 'medical separation' which is what you have - safe guard SM's money some how to protect your dad too - also talk to an accountant before you sell the house as it could be to all's benefit to rent it out with 1/2 of money going to each every month [after expenses] - between lawyer & accountant you should have the advice you need for where you live

Sle2000
Where in God's green acre do you or your step family live?
I am going through some of this right now, as I am actually typing this. My step-siblings, especially the oldest and they all claim to be ever so Christian, are all looking for the money! Let's make it look like we really care for daddy and your Mother, but we know that daddy didn't really have 2 nickels to rub together until he married your Mother.

1. Are both living in the same State at least?
2. Is the house in both names?
3. Is the State a Common Property or a Community Property?
4. Has anyone been appointed Guardian or Conservator?

Here comes the fun part:
In my situation, I reside out of State. I have 2 siblings who live in State and another who lives out of State also. All of the step-siblings live out of State and really don't like my Mother very much.

I found it very odd that each one of them has asked at some time or another, what happens to the house if your Mother dies before daddy? That's easy, it stays just where it is because it's on a foundation and the house is sole and separate property from the marriage.

You mean that even though they have been married for 24 yrs, daddy doesn't get the house. Why that is correct, he will never have possession of this house or anything that was in it before they married. The only thing(s) that are his are the china, other knick knacks from the mobile home and property he sold after he married Mom. Oh, and the clothes on his back, but I'll give you all of his clothes in the closet and dresser drawers how's that?
Well, that doesn't seem right. Everything should be theirs equally since they have been married for so long.
Sorry, doesn't work that way here in a Community Property State. What Mom had before the marriage will always and forever be Mom's until she dies and she has designated someone to have the house. That also goes with bank accounts and how they were set up before or after the marriage.
Now, in many States bank accounts can be setup as primary owner with "authorized" signers. A true joint account, both parties must be present at the same time to sign the signature card. IF the parties are not, as in my Mother's case, to make it a joint account, then the account must be closed with both parties present and open a new account under both names. Following me on this one?
Now, if the account is a primary owner with authorized signing rights, this authorized signer can wipe out the account....there can be some legal issue involved...won't go into those. Should the authorized signer allow for say retirement deposits to go into this account, it is the same as handing over money as a gift to the primary owner giving the rights of the money in the account to the primary.
If the authorized signer has a Durable Power of Attorney and decides that they are not happy with the situation that daddy isn't going to get what they think daddy should, well let's use that Durable and wipe out the accounts....NOT, DON'T GO THERE.
A Durable POA does not allow one to steal and use the fact that both step-Mother who has Alzheimer's and daddy has progressive dementia, let's you abuse the fact that neither has the mental capacities to understand what you are doing aka robbing them blind.

In a Common Property State, everything is divided equally. Say daddy has a Rolls Royce and Mom has a Volkswagon; then everything that will equivocate the Rolls Royce must be provided to Mom. That could be all the banking accounts, stock, bonds, house whatever makes an equal exchange. There isn't any sole and separate property prior to marriage in Common Property States. Exception, one would have to provide records that high end property was in fact separate. Lesson here, if you had the house before you were married, don't place your spouse on the deed; same with Community Property.

I will be returning to my home State for a Court hearing to become Mom's Conservator and Guardian. Yes, the parent becomes the child and the child becomes the parent. I will have the total power of the realm which also includes everything that my step-father has....because he gave willingly to Mom and everything is now under the Estate of Mom aka this step-sister. No other POA has power over the Conservator/Guardian of an Estate as in this case.

Everything that my step-sibling has taken from the bank accounts will have to be returned IMMEDIATELY or I will have her served with papers stating that she in-fact preyed upon the fact that both parents do not know what is happening AND that she is pissed that daddy gets nada...zippo...zero....the big O. That any true joint account will be frozen and the Court and myself will be the ones to determine how that is to be divided. Right now, it is leaning toward me getting the money to take care of the issues for the Estate.

Now comes my responsibilities. If you think filling out tax returns is touch, whoa Nellie!
I have to keep record of every single penny spent that must match to all bills, receipts, invoices for work done and all of this better match to the bank balance as well as the spreadsheet that I have. I MUST PROVE TO THE COURT THAT I HAVE NOT GONE ON A CRUISE USING THE MONEY FROM THE ESTATE.

Nothing can leave the house without everything being appraised and in my case, be divided sole separate. This is so when I have to sell the house should Mom out live her money, the Court will already know the value for an Estate sale and what is untouchable.

So, since you are a blended family and it sounds like your step-siblings are duplicates of mine, research the State property laws.
If APS is not doing their job, REPORT THEM IMMEDIATELY. Have all of your documentation to prove that they have not done what they should have been doing.
Let the Court know that they are robbing their Mother blind which comes under ELDERLY ABUSE. NEGLETE IS ELDERLY ABUSE, LEAVING THEIR MOM ALONE WITHOUT A BABY SITTER IS ELDERLY ABUSE.
You need an attorney who is educated very well with Estate Law and Elderly Abuse. Before you hire the attorney, you may be able to find a paralegal (they do all of the leg work) who has a business on the side with the attorney and will get all of the proceeding started and the fees will also include the attorney when you go to court.

That's what I did because I became so frustrated with attorneys who wanted an arm and a leg for a "free" consultation. I have a fantastic paralegal working with the attorney and will even connect me with other attorneys who have worked with the attorney she works with at no cost if necessary.

YOU CAN STOP THIS AND YOU CAN STOP IT QUICK.

My step-siblings are in for a very BIG SUPRISE.

Seek out help with an elder law attorney.

DKentz, I'm sorry for the family troubles you're going through.

Um. What happens to the old man if he is still living when your mother, God forbid, passes away?

I appreciate your very natural feelings at the prospect of your steps walking off with a 50% legacy from an estate to which your mother was by far the majority contributor. Nuts to that, sure, I understand. And of course you are right to be alert to possible goings-on meanwhile.

But all self-interested motivations aside, what about the prospect of an elderly man who has been married for 24 years being left homeless and destitute on the passing of his wife? What protections would your mother have wanted to be in place for her husband should he become her widower, perhaps? (Come to that: why didn't she create any?)

I'm sure you won't, but don't let your displeasure with his children's behaviour make you callous towards him, will you?