My spouse and I have been together for 14 years and have two children. Unfortunately, my spouse has been diagnosed with bipolar disorder and experiences periods of mania. After much consideration, I have decided that I no longer want to remain in this cycle, so we have agreed to separate.
I am worried about how my spouse will cope on his own. While I hope for his thriving, I believe that our presence as a family holds him together. Despite my efforts, I have struggled to initiate conversations about dividing our assets and planning our next steps. I fear that these discussions may never happen.
Now, I realize it’s a conflict of interest for me to continue acting as his power of attorney (POA). However, I must also make decisions to ensure the financial security of myself and our children. Although I doubt I’ll receive consistent child support, I’m considering asking to front-load child support from our asset division. Additionally, I’m contemplating setting up a trust for his share and appointing someone to oversee its disbursement. This concern arises from the risk that if he were to receive the full amount, it might be spent recklessly and exacerbate his struggles, potentially leading to substance abuse issues.
I’m planning to consult with a lawyer, but I’m curious if anyone has faced a similar situation and found hope and success. Any stories or advice would be greatly appreciated. Thank you.
Divorcing someone for whom you hold Power of Attorney (POA) can present unique challenges and considerations. Here’s how you might approach this situation:
Legal Capacity: Before proceeding with the divorce, it’s essential to determine whether the individual for whom you hold POA has the legal capacity to understand and participate in the divorce proceedings. If there are concerns about their mental capacity or ability to comprehend the implications of divorce, you may need to seek a competency evaluation or guardianship appointment through the court.
Consult with Legal Counsel: Given the complexity of divorcing someone for whom you hold POA, it’s advisable to consult with a qualified family law attorney who can provide guidance and assistance throughout the process. The attorney can help you understand your legal obligations and options, as well as navigate any legal hurdles that may arise.
Act in Their Best Interests: As the individual’s agent under the POA, you have a fiduciary duty to act in their best interests and make decisions that align with their wishes and preferences to the extent possible. When considering divorce, it’s essential to weigh the potential benefits and drawbacks for the individual and proceed accordingly.
Seek Court Approval: In some cases, you may need to seek court approval before initiating divorce proceedings on behalf of the individual for whom you hold POA. This may involve filing a petition with the court and providing evidence to support the need for divorce and your authority to act on their behalf.
Consider Alternatives: Depending on the circumstances, divorce may not be the only option. Explore alternatives such as legal separation, mediation, or collaborative divorce, which may better suit the individual’s needs and preferences while still addressing issues such as property division and support.
Protect Their Rights: Throughout the divorce process, it’s crucial to protect the individual’s rights and interests. This includes ensuring that their financial and legal affairs are managed appropriately, and that their wishes are respected to the greatest extent possible.
Communicate Effectively: Keep lines of communication open with the individual, their family members, and any other relevant parties involved in the decision-making process. Transparency and collaboration can help ensure that everyone is informed and involved in decisions affecting the individual’s future.
Navigating a divorce when you hold POA for the other party requires careful consideration, legal expertise, and a commitment to acting in their best interests. By working closely with legal counsel and other relevant parties, you can navigate the process effectively while safeguarding the individual’s rights and well-being.