A court must appoint a guardian ad litem when a party to an action is incapacitated and does not have a guardian. RCW 4.08.060. In In re Marriage of Gannon, the Washington Supreme Court held that a guardian or guardian ad litem may pursue a Washington divorce on behalf of an incompetent ward if it is in the ward’s best interests, noting that never allowing divorce to be pursued on behalf of the incompetent spouse would allow the competent spouse “absolute, final control over the marriage” and such a result was “not equitable.” The trial court must hold a hearing to determine whether dissolution is in the ward’s best interest.
In a recent unpublished case, an appeals court considered whether the trial court properly granted a divorce. According to the appeals court’s opinion, the parties married in 1989. The husband was diagnosed with Alzheimer’s disease in 2014. The parties started having arguments, including a physical altercation in 2016. The wife testified that she told the husband she was afraid he would kill her if she stayed with him. A neighbor testified the husband came to his house and said he could not go home because he was afraid he would be killed. The neighbor testified the husband asked him to call the police. The police arrested the wife.
The husband’s children tried to obtain a vulnerable adult protection order, but were unsuccessful. The wife requested a Guardian Ad Litem for her husband, stating she wanted to maintain their finances and control over his healthcare decisions. The husband signed a durable power of attorney for healthcare and durable power of finances. He stated he wanted a divorce.