Kentucky Supreme Court Allows Divorces to be Filed by Guardians of Disabled Adults

By Nicole Bearse, Goldberg Simpson’s Domestic Group Partner in Frankfort, KY

It has long been the law of the Commonwealth of Kentucky that guardians of disabled adults can assist with many tasks, but filing a divorce case on the ward’s behalf has not been one of those tasks. (A ward is the incapacitated / disabled person who has a guardian). One can imagine the frustration that this prohibition could cause in situations where the person cannot make their own decisions but is in an unhealthy spousal relationship that may have resulted in the abuse or exploitation of the vulnerable individual.

Recently, the Kentucky Supreme Court took the opportunity to protect this vulnerable population in Brooks by Elderserve, Inc. v. Hagerty, et al., 2020-SC-0065-MR (to be published).

In this case, Elderserve was the guardian of Charles Brooks, a seventy-six-year-old blind man, who had married Taylor Toney, a twenty-nine-year-old, who had been a caretaker for his deceased wife prior to her death. The facts were clear that Toney had sold or transferred significant assets from Brooks for her own use. Adult Protective Services (APS) became involved, but Toney had already significantly disposed of those assets. Elderserve was appointed guardian for Brooks and sought a divorce on his behalf. The family court dismissed the petition for divorce based on Johnson v. Johnson, 170 S.W.2d 889 (Ky. 1943), which had established the prohibition against guardians filing for the divorce on behalf of their wards.

Although this matter ultimately came before the Kentucky Supreme Court on a separate procedural issue, the state’s highest court took the opportunity to clarify its position. The Court held that the Johnson opinion, and its resulting prohibition, was written in 1943, prior to certain statutory changes having occurred. KRS 387.640(1) now provides a broader mandate to guardians to protect their ward’s “personal, civil, and human rights.” The Court pointed out that it had repeatedly upheld Johnson, but each time had questioned whether the prohibition against guardian-initiated divorces should continue. Ultimately, the court found that restricting guardians from being able to separate their wards from a marriage that is not in their best interests, or is even harmful or exploitive, would result in an inability to fulfill this statutory mandate.

In short, if you are the guardian of an individual and wish to pursue a divorce on their behalf, you now have an outlet to do so, and the KY Supreme Court has specifically outlined a process for you to follow. You will be required to seek permission from the district court if you think a divorce is in your ward’s best interests. Such a decision by the district court would consider evidence from you and your ward’s spouse as to your ward’s best interests, which could include your motivation for assisting your ward. If granted, your ward must be allowed to participate to the best of their ability. The Supreme Court has taken an admirable step to protect the vulnerable with this opinion. If you need assistance with such a matter, contact our offices today, as each case is fact specific and you will need advice tailored to your situation.