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Los Angeles Lawyer

The Magazine of the Los Angeles County Bar Association

October 2012     Vol. 35, No. 7


MCLE Article: Of Sound Mind

While the test for capacity for marriage is relatively simple, it is more complicated during divorce

By Howard S. Klein and Taylor E. Bouchard

Howard S. Klein is a certified specialist in estate planning, trust, and probate law and heads the probate department at Feinberg, Mindel, Brandt & Klein, where Taylor E. Bouchard is an associate who primarily practices in family law and business litigation. The authors would like to thank Amy Stallard for her assistance with this article.

By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.

One may hope that each party entering marriage has the best interest of the other in mind. Similarly, one may hope that even in divorce each party still has the interest of the other somewhat in mind, particularly when minor children are involved. Congruent with this hope, California's community property laws are structured to ensure fairness in the division of assets and award of support. Nevertheless, when one spouse is at a significant disadvantage, it is possible during a divorce for the other to gain the upper hand. The consequences of this can be devastating and long-lasting. When a divorcing spouse is incapacitated or otherwise suffers from mental impairment, the relatively simple process of dissolution requires careful attention to procedural considerations and due process safeguards.

Every attorney needs to be able to follow the special procedural requirements that apply when representing an incapacitated party. Divorce lawyers encounter people during some of the most stressful times of their lives, and as a result the basic signs of incapacity or mental impairment can easily be overlooked or discounted. In fact, stress can rise to the level of incapacity. A unique challenge that this situation presents to counsel is being able to identify whether a party is incapacitated or is at risk of becoming incapacitated during the proceeding.

The Due Process in Competence Determinations Act, codified at Probate Code Sections 810-813, defines capacity and offers a wide range of potential mental deficits that may support a finding of incapacity. The act is the statutory authority for determining legal mental competency in California. Under the code, a rebuttable presumption exists that all people have the mental capacity to make decisions for themselves.1 A California court will presume that the parties have sufficient mental capacity, and most practitioners assume that clients have sufficient mental capacity to work through their cases. In support of this presumption, the code holds that the diagnosis of a mental disorder alone does not render a person incapacitated.2 For example, a person with bipolar disorder is not automatically deemed incapacitated as a result of his or her diagnosis. Counsel's mere awareness of a client's medical history is insufficient for making a judgment about capacity. Mental incapacity puts the practitioner in the difficult position of having to rely on his or her own assessment of a client's mental capacity in order to determine whether a client needs additional protection. More challenging still, a client's mental capacity may improve or deteriorate over the course of the proceeding and the attorney-client relationship.

To assist the practitioner, who is understood not to be a medical expert, in making this assessment, the Probate Code sets forth several categories of mental function and lists examples of deficits in the particular functions that may rise to the level of incapacity.3 The categories of each mental function generally pertain to one's ability to understand one's surroundings. They include but are not limited to alertness and attention, information processing, thought processes, and ability to modulate mood and affect.4 In determining whether a deficit in one of these areas is so substantial that the person lacks the capacity to do a certain act or make a certain decision, the court may take into consideration the frequency, severity, and duration of periods of impairment.5

A deficit in mental functions may be considered only if the deficit, by itself or in combination with one or more mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of action or decision in question.6 As it pertains to a marital dissolution proceeding, a mental deficit can manifest itself in a variety of ways, some of which may not be obvious. For example, while medical training may not be required to recognize impairment in someone with advanced Alzheimer's disease, other syndromes--including substance abuse and even simply the stress of divorce--may be less readily apparent but still render a person incapacitated under the Probate Code. The inability to concentrate enough to give meaningful instructions to counsel or to understand the effect of certain decisions, or outbursts of unjustified anger that prevent resolution or progress toward resolution may be symptoms of an incapacitated client.

Additionally, it is important to note that a person's mental capacity can change. A progressive infirmity may render a person incapacitated during a proceeding.7 In re Marriage of Straczynski is one case that addresses the necessity of a party to demonstrate the capacity to maintain a dissolution action at any point during the proceeding at which a question of his or her capacity is raised.8 As a fiduciary, it is the attorney's responsibility to note anything that suggests his or her client may not have sufficient mental capacity to participate in the proceeding and to bring it to the court's attention.

Mental Capacity to Marry

Mental capacity during divorce is not the only issue for an attorney to consider. The mental capacity required to get married, which is very low, is also worthy of examination. Marriage may result from love and romance, but from a legal standpoint, marriage is based squarely in contract.9 Specifically, each party to a marriage contracts to perform the duties and obligations of the marriage.10 The Family Code provides that a valid marriage may be entered into only by consenting parties who are "capable of making" the contract of marriage on the date of the marriage.11 Generally, the only persons who are incapable of contracting are minors, persons of unsound mind, and persons deprived of civil rights.12

The Probate Code acknowledges the fundamental importance of the right by attempting to preserve the right to marry for those who might otherwise not have legal capacity to enter into other types of contracts. First, the appointment of a conservator does not in and of itself affect the conservatee's capacity to marry, despite limiting the conservatee's ability to contract generally.13 So the presumption works in support of finding capacity to marry. Second, it is within the court's power to order a determination of a conservatee's capacity to enter into a valid marriage.14 The conservator, the conservatee, or any relative, friend, or interested party may also petition the court for such an order.15 Thus, the determination of a person's capacity to marry will be personal and subjective, subject to testimony from any interested person with knowledge of the conservatee's mental state.16 In this way, the Probate Code seems to recognize that marriage, while a contract, is a special kind of contract deserving of extra protection. Maybe it is romantic after all.

Incapacity in Divorce

Although few cases directly address the issue of incapacity in divorce, one can easily envision a scenario involving a mentally incapacitated spouse effectively trapped in an unhappy, dangerous marriage. On the other hand, the personal and complicated nature of marriage and divorce creates risk in allowing another person to speak for an incapacitated spouse. How can an incapacitated spouse reach the outcome he or she truly desires and that is in his or her best interest?

First, to initiate a dissolution proceeding, the mentally incapacitated spouse must at least be able to express that he or she wants to end the marriage. In re Marriage of Higgason prescribes the rule that a proceeding for dissolution may be initiated by a spouse under conservatorship by and through a guardian ad litem, provided it is established that the spouse is capable of exercising a judgment and has expressed a wish that the marriage be dissolved on account of irreconcilable differences.17

One's mental capacity can change, however, throughout the course of a dissolution. While Higgason established the rule relating to the initiation of a dissolution, until 2010 there was no case on point as to how a dissolution proceeding may be maintained and pursued to completion. In re Marriage of Straczynski extended Higgason by holding that an incapacitated individual may maintain a dissolution proceeding provided he or she remains capable, throughout the proceeding, of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences.18 The court explained that this interpretation is consistent with the understanding that the decision to dissolve a marriage is intensely personal, because, at any time the issue of one spouse's capacity is raised, either through a motion brought by one of the parties or sua sponte by the trial court, that party must establish his or her current capacity to express his or her desire to dissolve the marriage.19

Based on the Higgason rule alone, it would seem that an incapacitated spouse incapable of expressing a wish to divorce could be trapped in a marriage. However, for the person who cannot express a wish to divorce, alternative statutory mechanisms and other provisions exist. The well spouse may consent, by a writing filed in the proceeding, that all or part of the community property be included in and managed, controlled, and disposed of as a part of the conservatorship estate.20 In addition, a body of law enables the conservator of a spouse in need of support to obtain an award of spousal support from the well spouse, or to enforce the well spouse's obligation to pay support to the incapacitated spouse, without the need of filing a petition for dissolution of marriage or legal separation.21 Thus, the law recognizes the need to provide protection for married people with diminished mental capacity but does not presume to speak for people on such a personal matter. Moreover, the well spouse is still restricted, and the incapacitated spouse is thereby protected, by fiduciary duties owed between spouses through final judgment of dissolution. Such interspousal fiduciary duties are protections afforded to all spouses.22

Procedural Considerations

Once the attorney is aware his or her client is incapacitated within the meaning of the Probate Code, certain procedural and due process safeguards must be implemented. If a client is incapacitated, the attorney's authority to act on behalf of that client terminates in accordance with basic agency principles.23 The attorney-client retainer agreement must be confirmed by the incapacitated spouse's surrogate (be it a guardian ad litem or a conservator of the incapacitated spouse's estate), or the attorney will lack consent to represent the spouse with impaired judgment.

When representing a spouse with impaired judgment in a dissolution, either a guardian ad litem or conservator of the estate must be appointed. The basic difference between the two is that a guardian ad litem has a limited scope of representation that terminates upon finalization of the proceeding for which he or she was appointed, whereas a conservatorship is ongoing and applies to every facet of the incapacitated spouse's life. Deciding which representative to appoint will depend largely upon the seriousness of the spouse's incapacity. A guardian ad litem may be more appropriate for the individual whose capacity is momentarily affected by debilitating stress, for example. A conservator may be more appropriate if the incapacitated individual needs long-term assistance because the incapacity more broadly affects the individual's life. A conservatorship is expensive and limits the conservatee's civil liberties. In cases of the severely incapacitated, however, it may make sense to appoint a conservator rather than a guardian ad litem.

The selection between a guardian ad litem and conservator of the estate may depend on which spouse counsel is representing. If the lawyer for the well spouse identifies a potential capacity issue with the opposing party, he or she may seek a guardian ad litem. The guardian ad litem is sufficient to help make sure that the well client does not violate his or her fiduciary duty. At the same time, a guardian ad litem should cost less than a conservator. On the other hand, if counsel represents the incapacitated spouse, it may be prudent and safer to seek appointment of a conservator.

If a conservatorship is appropriate, the incapacitated spouse or the well spouse may petition the probate court for a conservatorship with Judicial Council form GC-310. A conservator of the estate may be appointed for any person who is "substantially unable" to manage his or her financial resources "or resist fraud or undue influence."24 The court may not appoint a conservator of the estate unless it makes an express finding that granting of the conservatorship is the least restrictive alternative needed for the protection of the conservatee.25

Either the incapacitated spouse or the well spouse may nominate the conservator. The incapacitated spouse's preference, which may have been expressed years before the onset of the incapacity, is given priority over the well spouse's nomination.26 Moreover, a court will not consider a well spouse's petition for his or her appointment as conservator of an incapacitated spouse if the well spouse is a party to a dissolution, legal separation, or nullity proceeding involving the incapacitated spouse.27 Once the conservator is appointed, the family law attorney must substitute the conservator as a party to the dissolution proceeding.28 Included among the many powers of the conservator is that of employing an attorney, entering into a fee agreement, and paying family law attorney's fees.29

If a guardian ad litem is more appropriate for the incapacitated spouse, either because the party sought a guardian ad litem or because the court determined establishment of a conservatorship to be too restrictive, the intervention of the probate court is not necessary. A guardian ad litem can be appointed in the family law court concurrently with the initial filing of a petition for divorce. A relative, friend, or any other party may petition the court for a guardian ad litem, and the court may on its own motion appoint one.30 The petition to appoint a guardian ad litem may be filed ex parte with Judicial Council form CIV-010. The application should name the desired guardian ad litem, request authority for the guardian ad litem to serve as the incapacitated spouse in the dissolution action, and request authority for the guardian ad litem to employ counsel and confirm the attorney-client fee agreement.

In theory, the appointment of a guardian ad litem or conservator should put the incapacitated spouse on equal footing with the other spouse during the dissolution. In reality, even with the one significant hurdle of the guardian ad litem's appointment behind the incapacitated spouse, he or she still faces a stressful road ahead. As with any dissolution (and maybe more so when one spouse is already suffering from diminished mental capacity), reducing cost, time, and stress via a reasonable settlement is to be preferred to the rigors of contested trial. The conservator, guardian ad litem, or other interested party may therefore file a petition to authorize a proposed action, such as a settlement, if it would benefit the incapacitated person, via a substituted judgment proceeding in which the court is asked to approve a proposed course of conduct set forth in a petition by the conservator or other interested party.31 More specifically, the conservatee, guardian ad litem, or other interested party may petition for an action conveying or releasing the incapacitated spouse's contingent and expectant interests in marital property as part of a marital settlement.32

Potential Complications

The confidential, fiduciary relationship of marriage "imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other."33 It follows that the fiduciary relationship has special implications when one spouse is mentally incapacitated because it obliges the well spouse to take the appropriate steps to ensure that he or she is not taking unfair advantage over the incapacitated spouse because of his or her incapacity.34

A failure to acknowledge a spouse's diminished or diminishing mental capacity during a divorce proceeding, as well as a failure to protect the spouse, could amount to a breach of fiduciary duty. Further, failing to appoint a representative for an incapacitated spouse leaves the well spouse exposed to potential breach of fiduciary duty claims as well as exposing the attorney who failed to protect the well spouse from such changes to potential malpractice claims. Thus, the attorney representing the potentially unwell spouse must remain vigilant, and the opposing counsel must also be alert for signs of mental incapacity.

Breach of Fiduciary Duty

When a court finds that one spouse has breached his or her fiduciary duty to the incapacitated spouse, the consequences may be severe. A breach of fiduciary duty is defined as "impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate."35 If the breach falls short of malicious and willful behavior, the consequence is "an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs."36 Attorney's fees and costs are mandatory. In the context of incapacity, cost could also include the fees associated with a guadian ad litem or conservator. If the breach is malicious or willful, the consequence is "an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty."37

In addition to breach of fiduciary duty issues, an unprotected spouse risks having a stipulated judgment set aside under Family Code Section 2122. If parties to a dissolution proceeding have finalized their marital dissolution proceeding and it is later learned that one spouse lacked capacity at the time the judgment was executed, the judgment may be set aside so long as the action to set the judgment aside is made within two years of the date of the entry of judgment. A set-aside action is expensive and time consuming.

The test for mental capacity is set forth in detail in the Due Process in Competence Determinations Act. Passing that test is normally no problem for a person contemplating marriage. Matters become difficult, however, when considering the mental capacity of a petitioner seeking or maintaining a marital dissolution. Issues such as spousal rights and duties, characterization of marital property, spousal and child support, and custody must be carefully considered when navigating the dissolution process. Assuming the basic tests of sufficient capacity to sue are met, the impaired spouse can be assisted by appointment of a conservator or guardian ad litem. If a mentally incapacitated person is required to respond to a petition for dissolution, the appointment of a conservator or guardian ad litem becomes mandatory. The use of a conservator or guardian ad litem not only protects the incapacitated spouse but also serves to protect the well spouse from fiduciary duty violations and to protect the attorney representing the spouse with impaired judgment from malpractice claims.



1 Prob. Code §810(a).
2 Prob. Code §811(d).
3 Prob. Code §811(a).
4 Id.
5 Prob. Code §811(c).
6 Prob. Code §811(b).
7 Crossover Issues in Estate Planning and Family Law, Incapacity Issues in Family Law and Probate Proceedings §7.60 (CEB 2011). See also, e.g., Walsh, Mental Capacity: Legal and Medical Aspects of Assessment and Treatment (1994).
8 In re Marriage of Straczynski, 189 Cal. App. 4th 531 (2010).
9 In Re Gregorson's Estate, 160 Cal. 21 (1911).
10 Rathburn v. Rathburn, 138 Cal. App. 2d 568, 574 (1956).
11 Fam. Code §300(a); Goldman v. Goldman, 169 Cal. App. 2d 103 (1959).
12 Civ. Code §1556.
13 Prob. Code §1900.
14 Prob. Code §1901.
15 Id.
16 Dunphy v. Dunphy, 161 Cal. 380, 385 (1911).
17 In re Marriage of Higgason, 10 Cal. App. 3d 476 (1973).
18 In re Marriage of Straczynski, 189 Cal. App. 4th 531, 539-40 (2010).
19 Id. at 540-41.
20 Prob. Code §3051(c).
21 See Prob. Code §§3080-92.
22 See Prob. Code §3057 and Fam. Code §1100.
23 Sullivan v. Dunne, 198 Cal. 183, 192 (1926).
24 Prob. Code §1801(b).
25 Prob. Code §1800.3(b).
26 Prob. Code §1810.
27 Prob. Code §1813(a).
28 Code Civ. Proc. §372.
29 Prob. Code §2430(a)(1).
30 Code Civ. Proc. §373.
31 Prob. Code §2580(a)(1).
32 Prob. Code §2580(b)(2); Crossover Issues in Estate Planning and Family Law: Incapacity Issues in Family Law and Probate Proceedings §7.57 (CEB 2011).
33 Fam. Code §721.
34 Fam. Code §1101(e).
35 Fam. Code §1101(a).
36 Fam. Code §1101(g).
37 Fam. Code §1101(h); In re Marriage of Rossi, 90 Cal. App. 4th 34 (2001).


By reading this article and answering the accompanying test questions, you can earn one MCLE credit.


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