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Family Law

Alzheimer’s and divorce – the complex issues

By October 22, 2019February 23rd, 2024No Comments

World Alzheimer’s Day, held on 21 September every year, is an international campaign to increase awareness and put the spotlight on issues faced by those suffering from Alzheimer’s disease. One such issue is the impact on a couple’s relationship when a partner is suffering from Alzheimer’s and the complexities involved in Alzheimer’s and divorce.

In Australia there are approximately 447,000 people suffering from Alzheimer’s disease, that number expected to increase as the population ages. (Alzheimer’s is one form of the different kinds of dementia, and the two terms are sometimes used to mean the same thing.)

Alzheimer’s and divorce

It is a heartbreaking situation when a disease like Alzheimer’s threatens a marriage, and it’s an even harder situation than usual if it leads to divorce or separation.

Depending on the stage of the disease, it’s inevitable that a sufferer’s marital relationship will dramatically change from what it was when the spouses were both healthy. One spouse becomes a carer or has to hire a professional to step into that role, and the former relationship of the married couple completely changes. The sufferer may no longer recognise their loved one. They may not be able to hold a conversation. They may become abusive or querulous, or behave in other ways that cause tension. They may behave recklessly with finances, causing the healthy spouse to worry over their assets.

The spousal carer can become depressed and despairing, and feel trapped or lonely. They may not practically be able to continue living together because of the sufferer’s special needs, but the healthy spouse may experience extreme guilt over the perceived ‘abandonment’ of their spouse.

Emotional issues of Alzheimer’s and divorce

Healthy spouses of sufferers are in a unique difficult situation. While they are still legally married, the person they married is not “there” anymore, or may not even recognise them. Such a predicament is traumatic and exhausting, especially since in many ways caring for a spouse with Alzheimer’s can be similar to caring for an infant, in that the sufferer cannot be left to function alone and isn’t always able to be rational.

The healthy spouse may also wish for their partner to be cared for in a facility to get round-the-clock, specialist, professional care and monitoring, and in order for the carer to be able to have respite. However, while this may be a better solution for the unwell spouse, the healthy spouse can feel disloyal, guilty and often lonely.

New loves

If a healthy spouse feels they genuinely made their vows to remain together “for better or worse, in sickness and in health, til death do us part”, they are unlikely to wish to find a new love interest. On the other hand there are those healthy but lonely spouses who feel that since their partner may not even know who they are anymore, why not keep visiting the spouse but seek comfort and company from others?

They may also wrestle with the moral issues and the social judgment of others regarding whether it is “right” to divorce a spouse with Alzheimer’s. In the US the televangelist Pat Robertson caused a stir a few years ago when he suggested a man divorce his wife with Alzheimer’s, with many decrying this as cruel. However, in relation to the vow “til death do us part”, Robertson noted that Alzheimer’s “is a kind of death”.

Aside from the ethical and moral dilemma, it’s still legally possible to obtain a divorce, though it may take a longer time than usual if the unwell spouse refuses or is incapable of consenting.

What if the Alzheimer’s sufferer wants a divorce?

It’s interesting that in Robertson’s defence, it was pointed out that sometimes it’s actually the spouse with Alzheimer’s who forms a new relationship:

“Doctors say it’s not particularly unusual for married patients to bond with someone new. Although the disease may steal the memories of past lives, it doesn’t take away the desire for love and companionship.”

However, it’s necessary to have the mental capacity to understand the decision to divorce. If the person does not have the capacity, someone who was appointed a power of attorney, or a court-ordered guardian, can file on their behalf in certain cases. They may continue the divorce process if it was started before the person became incapacitated, or they may initiate a divorce if they are able to prove it’s in the sufferer’s best interests. The courts then decide on the risks and benefits of outcomes and a ‘best guess’ of the wishes of the sufferer. When working out financial settlements, courts will take into account a sufferer’s increased needs, for example costs involved in hiring carers or paying for a place in a residential home or other facility.

Capacity, Alzheimer’s and divorce

When a spouse is suffering from a cognitive impairment such as Alzheimer’s disease or dementia, a lot depends on whether they have what is known as “testamentary capacity”. This means they are legally able to make their own decisions and instruct professionals to act on their behalf: they have the power, ability and competence to decide for themselves on matters regarding their health and financial matters. The presumption of capacity means that under the law, someone is presumed to be of sound mind and have capacity to make decisions, unless it’s proven otherwise.

With Alzheimer’s, as the disease progresses, capacity typically becomes vastly decreased and it becomes necessary for someone else to manage the sufferer’s affairs. In cases of diminishing capacity, when there is accumulated wealth, it’s crucial to act fast while the sufferer still does have capacity, to put measures in place that will avoid estate litigation.

Planning ahead involves the sufferer and/or their carer having an updated will, an enduring power of attorney and enduring guardianship requirements – the latter being especially important documents for people suffering from conditions such as dementia and Alzheimer’s.

Support regarding Alzheimer’s and divorce

If you have a spouse with Alzheimer’s you have probably already been made aware of the support organisations that exist through your medical professionals. It’s important to obtain as much support and advice as you can, including on legal issues. For example, dementia.org.au has produced a comprehensive guide to dementia and your legal rights, covering the specifics for each state. You can also call us for a free no-obligation consultation to discuss your needs.

Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services, on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

RELATED: You may like to read our blog on elder abuse.

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