Fiduciary Decision-Making Authority in Divorce

The dissolution of marriage involving a party who lacks legal capacity is fraught with potential issues. The capacity to enter into a marriage contract is a fundamental civil right, yet the capacity to dissolve that union involves a distinct set of requirements.

The central legal tension in this domain arises from the historical doctrine known as “strictly personal.” This common law principle holds that the decision to seek a divorce is so intensely personal and volitional that it cannot be delegated to a third party, even one appointed by a court to manage the affairs of an incapacitated person. As divorce laws have evolved from fault-based systems requiring proof of moral failing to no-fault systems based on incompatibility or separation, the rationale supporting the strictly personal doctrine has faced substantial scrutiny.

Oklahoma: Fiduciary Authority

Oklahoma law regarding the authority of a guardian to initiate a divorce on behalf of a ward has undergone a significant transformation, culminating in recent Supreme Court jurisprudence that clarifies what was previously an ambiguous statutory landscape. The state has moved decisively away from the strict application of the strictly personal doctrine, recognizing that the broad powers granted to guardians under the Oklahoma Guardianship and Conservatorship Act include the authority to sever marital bonds when it serves the best interests of the ward.

Guardian Authority to File for Divorce

The seminal authority on this matter is the 2024 decision by the Oklahoma Supreme Court in Galbraith v. Galbraith. Trial courts sometimes followed the traditional view that a guardian could not initiate a divorce proceeding because the statutes did not explicitly grant such power. In Galbraith, the trial court had granted summary judgment against the guardian, reasoning that without explicit statutory authorization, the guardian lacked standing to file. The Oklahoma Supreme Court reversed this decision.

The reasoning in Galbraith rests on the interpretation of the Oklahoma Guardianship and Conservatorship Act. The Act mandates that a guardian serves to provide for the care, comfort, and maintenance of the ward and manage their financial resources. The Court determined that these broad duties encompass the authority to petition for the dissolution of marriage if such an action is necessary to protect the ward’s assets or personal well-being. This effectively aligns Oklahoma with jurisdictions that prioritize the best interests of the incapacitated person over the theoretical preservation of a marriage that the ward can no longer comprehend or maintain.

The standard for granting a divorce in such cases usually relies on incompatibility, which is the standard no-fault ground in Oklahoma. Since the ward may not be able to testify as to the state of the marriage, the guardian is required to present objective evidence that the marriage is irretrievably broken. This might include evidence of separation, financial impropriety by the competent spouse, or the prior expressed wishes of the ward before incapacity. The Galbraith decision reinforces the concept that an incapacitated person should not be trapped in an abusive or financially exploitative marriage simply because they lack the capacity to say they want a divorce.

The authority of an agent acting under a Power of Attorney (POA) to file for divorce in Oklahoma is governed by the Uniform Power of Attorney Act, which Oklahoma has adopted. The analysis here differs slightly from that of a court-appointed guardian. A guardian derives authority from the state via the court, whereas an agent derives authority from the principal via the contract.

Under the Oklahoma Uniform Power of Attorney Act, an agent may only exercise authority specifically granted in the instrument. While general language granting authority over claims and litigation is interpreted broadly to include the power to assert and maintain before a court a claim for relief, practitioners act with extreme caution. The Act contains a provision regarding the termination of authority where an agent’s authority terminates if the agent is the spouse of the principal and an action for divorce is filed. This automatic termination provision is designed to prevent a spouse from using the POA to advantage themselves during the divorce process, such as by transferring assets to themselves.

However, if the agent is a third party, such as an adult child or a professional fiduciary, the authority to file for divorce on behalf of the principal depends on the language of the POA document. If the POA grants general authority with respect to claims and litigation, this arguably includes the power to initiate family law matters. Nevertheless, because divorce involves personal rights, cautious practice dictates that the POA should include express language authorizing the agent to handle domestic relations or family law matters. Absent such explicit language, a respondent spouse could successfully challenge the agent’s standing, arguing that the general litigation power refers to property and contract disputes, not the dissolution of the principal’s marriage.

Process and Service on an Incapacitated Respondent in Oklahoma

When the situation is reversed, where a competent spouse files for divorce against an incapacitated spouse, Oklahoma law imposes rigorous safeguards to ensure due process. The service of process rules are designed to ensure that notice is actual and effective, rather than merely formal.

If the respondent has been adjudicated incapacitated and has a guardian, service of the petition and summons is required to be made upon the guardian. The Oklahoma Pleading Code mandates that service on an incompetent person be made by serving the guardian. If there is no guardian of the estate or person, the court bears the obligation to appoint a Guardian Ad Litem (GAL) to represent the interests of the incapacitated respondent. The plaintiff cannot simply serve the incapacitated person directly, as such service would be defective and any resulting default judgment would be voidable.

The role of the Guardian Ad Litem in this context is distinct from a general guardian. The GAL is appointed solely for the litigation. Their duty is to investigate the allegations, file an answer, and defend the action. In Oklahoma, the court may also appoint an Oklahoma divorce attorney for the ward in addition to the GAL, particularly if there is a conflict between what the GAL determines is in the best interests of the ward and what the ward expresses as their desire, assuming some residual capacity exists.

The divorce decree in such cases will address the division of property and support just as in any other case, but the court will take special care to ensure the incapacitated spouse’s future financial needs are met.

Arkansas: The Restrictive “Strictly Personal” Doctrine

Arkansas stands in stark contrast to Oklahoma, maintaining a much more restrictive approach grounded in older common law principles. The state’s jurisprudence reflects a deep hesitation to allow third parties to intervene in the marital relationship, viewing the decision to divorce as an exclusive, non-transferable right of the individual.

The controlling legal authority in this jurisdiction remains the principles articulated in Jackson v. Bowman. While this case is dated, its fundamental holding, that the right to seek a divorce is strictly personal to the aggrieved spouse, has cast a long shadow over Arkansas family law. The court reasoned that marriage depends on the personal affections and will of the parties, and just as a guardian cannot marry on behalf of a ward, a guardian cannot untie the knot.

In Arkansas, the courts have historically held that no matrimonial offense, such as adultery or cruelty, automatically dissolves a marriage, and the injured party holds the option to choose to invoke their right to divorce. If a person is mentally incompetent, they lack the legal capacity to make that choice. Therefore, a guardian generally lacks the standing to file a petition for divorce on behalf of the ward. The rationale is that the incompetent spouse, if they were to regain their faculties, might choose to forgive the offending spouse and continue the marriage. Allowing a guardian to sever the bond precludes this possibility of condonation.

There are narrow potential exceptions or distinguishing factors. For instance, a divorce was allowed to proceed where the ward had a guardian of the estate but had not been adjudicated incompetent as to the person. This suggests that if a person retains some measure of personal capacity, even if they need help with finances, they may still direct their counsel to file for divorce. However, for a ward who is totally incapacitated, such as one with advanced dementia, there is a substantial barrier.

Legal scholars and practitioners in Arkansas have noted the tension between this doctrine and the modern reality of elder abuse and financial exploitation. There is a strong argument that the strictly personal doctrine could effectively trap vulnerable adults in abusive marriages, preventing guardians from protecting the ward’s estate from a predatory spouse. Despite this, the Arkansas legislature has not enacted a statute explicitly overturning the old law or granting guardians broad authority to file for divorce, leaving the restrictive common law rule largely intact.

The Arkansas Uniform Power of Attorney Act governs the authority of agents. Similar to Oklahoma, the Act provides that an agent’s authority terminates if the agent is the spouse and a divorce action is filed. Regarding the authority to initiate the divorce, Arkansas law requires a close reading of the powers granted.

The Arkansas statute regarding the construction of authority for claims and litigation allows an agent to bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae. However, without a particular grant of authority to handle family law or matrimonial matters, an agent faces the same strictly personal standing objection that a guardian faces. Because the right to divorce is considered personal to the spouse, a general grant of litigation authority is likely insufficient to overcome a motion to dismiss for lack of standing.

For an agent to have even a colorable argument to file for divorce in Arkansas, the Power of Attorney document would need to explicitly grant the power to initiate, maintain, and settle domestic relations and family law matters, including divorce. Even with such language, a court might still refuse to accept the petition based on the public policy established in Jackson, arguing that the principal could not delegate a right they effectively lost upon incapacity.

Process and Service on an Incapacitated Defendant in Arkansas

When an incapacitated person is the defendant in a divorce action in Arkansas, the rules of civil procedure are strictly enforced. Arkansas Rule of Civil Procedure 4 outlines the requirements for service.

Service upon an “insane” or incompetent person is required to be made by serving the guardian. If there is no guardian, the court generally cannot proceed until one is appointed, or the court acts to appoint a Guardian Ad Litem to receive service and defend the action. Arkansas law is particularly fastidious regarding the return of service. If the return does not explicitly state that the guardian was served in their representative capacity, the service may be quashed.

Arkansas Code § 9-12-301 outlines the grounds for divorce, including “three years separation by reason of incurable insanity.” This distinct ground for divorce has its own procedural requirements, including the need for expert testimony from two reputable physicians to establish the incurability of the condition. If a competent spouse sues for divorce on this ground, the statute explicitly requires service upon the guardian and the superintendent of the institution if the spouse is confined.

The role of the Guardian Ad Litem in Arkansas is to ensure a vigorous defense. The GAL cannot merely consent to the divorce. They hold the obligation to require the plaintiff to prove their case by the preponderance of the evidence. This includes forcing the plaintiff to prove grounds if fault-based and ensuring the division of property is equitable.

Missouri: The Middle Ground Approach

Missouri offers a third approach, occupying a middle ground between Oklahoma’s permissiveness and Arkansas’s restrictions. Missouri has addressed the issue legislatively, creating a particular, narrow statutory window for guardians to file for divorce.

The controlling authority in Missouri is Revised Statute of Missouri (RSMo) § 452.314. This statute is a direct legislative response to the strictly personal doctrine. It states that notwithstanding any other provision of law, a guardian may file a petition for dissolution of marriage if the guardian has reasonable cause to believe that the incapacitated person has been the victim of abuse by the spouse.

This statute creates a conditional right. Unlike in Oklahoma, where the best interest generally suffices, or Arkansas, where it is prohibited, Missouri allows the action only upon a showing of abuse. The statute defines a clear public policy: the state will intervene to dissolve a marriage to protect a ward from physical or emotional harm, but it will not dissolve a marriage merely for financial convenience or incompatibility absent abuse.

Practitioners must be precise in their pleadings. A petition filed by a guardian in Missouri that alleges irretrievable breakdown without alleging abuse is vulnerable to dismissal. The guardian is obligated to be prepared to offer testimony and evidence of the abuse at the initial stages to establish standing. If the court finds reasonable cause to believe abuse occurred, the dissolution proceeds. If not, the common law prohibition likely bars the action.

The statute also allows for legal separation instead of dissolution if the ward has a history of religious objection to divorce. This nuance respects the ward’s prior competent intent, balancing their religious freedom with their immediate need for safety. This provision shows a sophisticated legislative attempt to balance protection with personal autonomy.

Missouri’s Durable Power of Attorney Law is comprehensive. It allows a principal to grant an agent general powers which are construed broadly. However, regarding divorce, Missouri law is consistent with the general rule that an agent’s authority is limited to the principal’s financial and property affairs unless personal powers are explicitly granted and consistent with public policy.

Crucially, RSMo § 404.717 provides that a Power of Attorney terminates upon the filing of an action for dissolution of marriage between the principal and the agent. This is the standard conflict-of-interest prevention clause.

For a third-party agent to file for divorce, they would need to rely on the general powers clause. However, given the specific statutory grant to guardians in cases of abuse, a court would likely look skeptically at an agent attempting to file for divorce without a guardianship appointment, especially if there is no allegation of abuse. The existence of § 452.314 implies that the legislature intended to restrict third-party filings to distinct protective scenarios. An agent seeking to divorce the principal would be well-advised to seek appointment as a guardian first, thereby invoking the clear statutory authority of § 452.314, rather than testing the limits of the POA statute.

Process and Service on an Incapacitated Respondent in Missouri

In Missouri, service of process on an incapacitated or disabled person is governed by Supreme Court Rule 54 and RSMo § 506.150. Service is required to be made upon the legally appointed guardian or conservator. If the incapacitated person does not have a guardian, the court holds the obligation to appoint a Guardian Ad Litem before any further proceedings can occur.

Missouri courts are strict regarding the rights of the incapacitated defendant. The Guardian Ad Litem is not merely a passive observer; they are the legal representative of the ward’s interests. In cases involving financial division, the GAL or conservator bears the responsibility to ensure that the marital asset division accounts for the ward’s long-term care needs, which are often substantial.

Unique to Missouri is the robust role of the Guardian Ad Litem in family law cases generally. While often used for children, when applied to an incapacitated adult, the GAL’s statutory duties under RSMo § 452.423 (though primarily for children, the principles often translate in practice for incapacitated adults) involve investigation and advocacy. The GAL has the authority to cross-examine witnesses, conduct discovery, and appeal the judgment. They act as the voice for the voiceless, ensuring that the incapacitated respondent is not steamrolled by a competent plaintiff.

Defending the Incapacitated Spouse

When the shoe is on the other foot, meaning the incapacitated person is the respondent or defendant, the procedural requirements are just as vital as the substantive law. A plaintiff who fails to strictly adhere to the service rules for an incapacitated defendant risks obtaining a void judgment that can be overturned years later.

In Oklahoma, the plaintiff initiates the action by filing the petition. However, before service is attempted, the plaintiff should check the probate records. If a guardian exists, service is directed to the guardian. The papers are not merely handed to the ward. If no guardian exists, the plaintiff’s attorney has an ethical and legal duty to alert the court to the defendant’s condition so a Guardian Ad Litem can be appointed prior to the entry of any order. Oklahoma statutes make it clear that a judgment against an incompetent person without a guardian or GAL is voidable. The plaintiff essentially has to facilitate the defense of their own opponent to ensure the judgment sticks.

In Arkansas, the process is even more formalized due to the “insanity” grounds for divorce. If suing on the basis of three years of separation due to incurable insanity, the plaintiff is required to serve the guardian and, if the person is institutionalized, the superintendent of the facility. This dual-service requirement acts as a safeguard. The court will not proceed until the GAL or guardian has filed an answer. A default judgment against an incapacitated person in Arkansas is disfavored and easily set aside if these steps are skipped. The GAL in Arkansas is expected to make the plaintiff prove every element of the case; they cannot simply waive the ward’s rights.

Missouri requires service on the court-appointed guardian or conservator. If none exists, the court acts to appoint a GAL. The Missouri system places a heavy emphasis on the GAL’s investigation. The GAL will likely interview the ward (if possible), review financial records, and interview caregivers. The goal is to ensure that the divorce is not a mechanism for the competent spouse to hide assets or avoid maintenance obligations. The Missouri court has the power to order the plaintiff to pay the fees of the defendant’s GAL, ensuring that the defense is funded even if the incapacitated spouse has no access to liquid assets.

Ethical and Practical Obligations for Fiduciaries and Counsel

The representation of a guardian or an agent seeking a divorce for a ward introduces a labyrinth of ethical considerations. The attorney is obligated to navigate the duties of loyalty, confidentiality, and the distinct roles of the various players.

The most fundamental practical obligation is determining the identity of the client. When an Oklahoma family attorney is hired by the guardian, the client is technically the guardian in their representative capacity. However, the ultimate beneficiary of the services is the ward. The attorney holds a duty to the guardian but cannot assist the guardian in breaching their fiduciary duty to the ward. If the guardian asks the attorney to pursue a divorce strategy that enriches the guardian (as a potential heir) at the expense of the ward’s current care, the attorney has an ethical conflict.

If an attorney is appointed as an Attorney Ad Litem or represents the ward directly, as permitted in states allowing the ward to retain counsel during lucid intervals, the client is the ward. The attorney is required to advocate for the ward’s expressed wishes, even if those wishes seem unwise to the guardian, unless the ward is totally incapable of expressing a preference.

Ethical Rule 1.14: Client with Diminished Capacity

All three states follow some version of ABA Model Rule 1.14. This rule dictates that when a client’s capacity is diminished, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship. This creates a tension between two modes of advocacy: substituted judgment and best interest.

Substituted Judgment involves the attorney or guardian attempting to make the decision the ward would have made if competent. For example, if the ward had a history of complaining about the spouse and had drafted divorce papers years ago but never filed, the guardian might use this as evidence that the ward would want a divorce now.

Best Interest involves the attorney or guardian making the decision that is objectively best for the ward’s well-being, regardless of past intent. For example, if the spouse is spending down the marital assets on gambling, a divorce is necessary to preserve funds for the ward’s medical care, even if the ward loved the spouse dearly.

Conclusion

Oklahoma has embraced the modern view that incapacity should not strip a person of the right to exit a marriage, using the guardian as the vehicle for that right. Missouri has created a protective corridor for victims of abuse but remains otherwise cautious. Arkansas holds fast to the traditional view that the decision to divorce is a solitary, personal act that cannot be delegated.