Representing Incapacitated Persons in Divorce or Legal Separation
Occasionally, in representing a party it becomes clear they cannot help in preparing and presenting their case. A person who is not able to fully grasp the advice that is being given to them, and to process it to decide on a course of action that is in their own best legal interests, is incapable of informed decision making. In such a case, their client’s incapacity needs to be addressed so that appropriate representation, such as the appointment of a guardian ad litem, can be made to protect the integrity of decisions made in the course of legal proceedings, and to ensure that a client’s best legal interests are advocated.
For an attorney who suspects or realizes this about their own client, extreme tact is called for in raising the issue that legal advice does not seem to be understood or appreciated and that court-appointed assistance in some form is indicated. For an attorney who suspects or realizes this about an opposing party, it is imperative to bring it to the Court’s attention for the same reasons, to protect the integrity of findings and orders achieved for your own client, from later attack on the basis that the other party was incompetent when such findings and orders were made.