Can my husband with dementia revoke my durable POA and divorce me?

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CraftyDeb Asked June 2017

Can my husband with dementia revoke my durable POA and divorce me?

I have Durable Power of Attorney since his initial diagnosis in 2015. Last night I had to file for an Order of Protection. He can still live here, just cant get violent, aggressive or destory or throw out any property. He has no one else to care for him and all the issues of life. He now states he is going to hire an attorney, revoke my POA and divorce me.
Can he actually do this? It would be better for me in the long run, but he is still my husband, and I agreed to take care of him to the best of my ability.... he is still my sons father (age 18 attends college and lives at home) and I feel I owe it to the family to do whats best for him. Social Security has also named me his Representative Payee since judge said he isn't competent financially with his diagnosis.
Can't find the firm answer to this question or what I need to do to either ignore this or hire an attorney myself and get ready to fight it all. We live in Lexington KY, I am 51 (today, lol) and spouse is 59.

Family Caregiver

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score 0 · Answer 1

You should ask a lawyer that question, since it may vary state to state. I would suggest you ask a bout a protective order to protect your assets. In some states the law allows young spouses to retain all of the marital assets, which makes the patient immediately Medicaid eligible. Then you do not have to use savings and cash in retirement plans for medical care. Best of luck- you’re in a tough spot, but know you’re not alone.

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score 0 · Answer 2

My sister and late BIL filed for what is called a financial separation. It helped protect some assets and others had to go.
An Elder Care lawyer should be able to advice on this.

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score 1 · Answer 3

How in the world is a judge going to deem this man competent to award him a divorce?

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score 1 · Answer 4

In the state of Washington, assets can be protected by the ill spouse signing over everything to the other in a divorce. This falls under Medicaid "spend down," which Washington state allows, some states do not. Our attorney called it a "Medicaid divorce." It takes a great deal of trust between the spouses. She also said some Washington courts are tolerant of these arrangements and others are not. I took that to mean that it was a "grey area" in the Medicaid spend down rules. However, with a diagnosis of dementia, the court would assign an advocate, which would defeat the purpose. So it was not an option for us. We had to pursue other spend down options, but never got to the point where we had to file for Medicaid. I managed to keep my husband at home, so no expensive care facility, just wear and tear on me.

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score 2 · Answer 5

If he's deemed incompetent then he can't do any legal affairs - as a matter of fact you may even have a tough time divorcing him due to his mental state

Those with dementia often turn on those they love - sorry it is happening to you - hope you can get him appropriate help

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score 3 · Answer 6

I don't know about the legality side of it but I have a question related to the violence. Is this new or was he always violent? My husband had been grumpy and belligerent since the accident that left him with TBI related dementia but when he suddenly took a turn toward a higher level of violence it turned out that was caused by PBA (Pseudo Bulbar Affect) and was easily controlled with medication. The medication eased his mood swings etc. So if this violence is new maybe what you need is a doctor visit rather than a restraining order?

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score 0 · Answer 7

I did not know that RayLin. Not that I'm contemplating divorce. I married for better or worse, in sickness and in health; however, I too have heard of people contemplating divorce to protect assets. Can that be done?

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score 1 · Answer 8

I once read a book that advised people who have spouses with dementia to get a divorce to protect assets for the surviving spouse so they won't all go to LTC and spouse with dementia will be eligible for Medicaid. That doesn't mean that you can't continue to care for him as long as you feel you can. However if court has already declared him incompetent that route is probably no longer open to you.

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score 2 · Answer 9

I was recently advised that you cannot divorce a spouse that is incompetent - so I have my doubts that someone declared incompetent could divorce you.

No, I am not looking to divorce my DH, lol :)
It was just a question that had come up and I remembered the answer.

And yes, if it is your Birthday - Have a most Blessedly Happy Birthday!

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score 4 · Answer 10

Happy Birthday!

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score 8 · Answer 11

Barbara is right.. If court has found him incompetent he cannot revoke POA or divorce. Perhaps it is time to fine him a higher level of care. There is nothing at all wrong with that. Most of us get to the point that we are either emotionally or medically unable to provide for their ever increasing needs.

Try to have at least a pleasurable birthday.

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score 4 · Answer 12

I agree, get him to a geriatric psych or neurologist who specializes in Alzheimer's. In the early stages my mom said she wanted a divorce. One thing I can promise about Alzheimer's is this too shall pass. Each stage has it's own set of challenges. I suggest you look up Teepa Snow and Naomi Feil. They have many techniques that work well weekend adapted to your specific circumstances.

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score 3 · Answer 13

Judge deemed him incompetent? Do you have a copy of that determination?

I don't think someone who is incompetent can file for divorce.

Has he been seen by a geriatric psychiatrist for meds for agitation?

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Can my husband with dementia revoke my durable POA and divorce me?

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