A Guardian May Be Appointed During a Las Vegas Divorce When One Spouse Has a Mental Incapacity

Woman kissing older motherThis is the next post in my series discussing how the Court will handle unique issues in a Las Vegas divorce. My last post explained how Judges will likely approach matters of health insurance and spousal support if one partner has a physical disability. In this article I will continue to expand on the issue of physical disabilities and explain how the Court will proceed if one partner does not have the mental capacity to make decisions for themselves.

Clark County Family Court Judges may appoint a guardian ad litem in cases where one spouse has a mental disability

A guardian ad litem is a person who is appointed by the Court. The guardian’s role is to help an adult who has a diminished mental capacity make legal decisions. The guardian may be a relative or trusted family friend when available. It can also be an attorney who is paid by the Court. Guardian ad litem’s are most common in legal cases that involve elderly persons who are suffering from some degree of dementia, but could also be assigned in divorce cases in which one spouse has suffered a traumatic brain injury, stroke, or some other injury impacting mental functioning. The guardian ad litem will have the power to determine what is in the client’s best interest; with regards to a divorce, the guardian ad litem will be charged with protecting the client’s best interests and to ensure that they are not taken advantage of by their spouse.

Divorce cases requiring a guardian ad litem will proceed the same as any other case. Clark County Family Court Judges will consider issues such as spousal support, property and asset distribution, child custody, and child support when appropriate. The guardian ad litem will ensure that the client does not inadvertently waive their rights or sign an agreement without fully understanding the legal documents they are signing. The Court appointee will also ensure that future possibilities are addressed. These may include how the party’s future medical care will be paid for, any necessary housing arrangements, as well as financial management issues.

Child custody and visitation may become an issue in Las Vegas divorce cases involving traumatic brain injury

While most cases involving a guardian ad litem are elderly in nature, divorce cases involving traumatic brain injury may also require an outside guardian. The effects of a traumatic brain injury are not always apparent. The Court may require neurological testing to determine the injured spouse’s abilities if such tests have not already been conducted. If a guardian ad litem is necessary then a frequent issue of importance is often child custody and visitation. If a parent is determined to require a guardian then they likely unable to take care of minor children. However, child visitation is often desired and it is the guardian ad litem’s duty to protect the parent/child relationship. The guardian will likely help to arrange visitation that both ensures the safety of the minors while allowing the parent and child to visit regularly. Informal supervised visitation is often an acceptable solution in cases in which an injured parent is not physically able to appropriately supervise children but deserves to continue a parental relationship.
Divorce cases in which one spouse is injured and has a reduced mental capacity can become complicated quickly. If you are going through a divorce and are either the injured spouse or have a spouse with reduced mental capacity it is important to consult with an experienced family law attorney. Contact our Las Vegas office today for an appointment.


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