Can An Adult Child With Power Of Attorney Handle An Elderly Parent’s Divorce?

iStock_000006889407Small Many grown ups in their 40s and 50s are part of the so-called “sandwich generation,” a growing group of adults who find themselves stuck in the middle caring for their own children and for the needs of their aging parents. These adult children might find themselves tasked with duties ranging from bringing their elderly parent to doctor’s appointments to serving as Power of Attorney over their parent’s financial affairs. But what happens in the event an older parent decides to divorce? A recent Ocean County NJ Superior Court ruling helps to clarify just how involved adult children can be in divorce proceedings, regardless of whether the adult child holds Power of Attorney (POA).   

In Marsico v. Marsico, an adult daughter with POA for her octogenarian-aged father began participating in legal proceedings on his behalf after his second wife, represented by Weinberger Law Group family law attorney Sylvia Breitowich, filed for divorce. The daughter’s position was that as the POA she had the legal authority to enter into litigation and pursue same on her father’s behalf pursuant to the POA document her father had signed. In other words, the daughter essentially began serving as her father’s legal surrogate in divorce proceedings.

Is this kind of behavior legally allowed? According to the the ruling, in the absence of any evidence showing the father to be incompetent and unable to participate — in which case a guardian should be appointed — the older parent is still responsible for providing testimony, whether or not an adult child has Power of Attorney. In its findings, the Court stressed the private and intimate nature of Family Part testimony involving communication between spouses. As Ms. Breitowich explained in a press statement, “The obligation to provide this kind of testimony cannot be side-stepped just because there is an adult child with POA.”

In terms of a larger trend and the impact this case ruling will have on future divorce cases involving aging adults and their sandwich generation children, Ms. Breitowich pointed to an uptick in the number of divorces among older spouses over the age of 60 here in New Jersey, and nationwide. “When these older adults divorce, it’s understandable that adult children will be concerned about what happens. By establishing clearer boundaries, as the outcome of this case does, it can help adult children understand their role in helping their parent in divorce and the parent’s own obligation to participate in proceedings,” Ms. Breitowich said in an interview with the New Jersey Law Journal.

If your elderly parent is contemplating divorce in New Jersey, what does this mean for your involvement? Because each situation is unique, especially in cases where it’s possible an elderly parent is NOT of sound mind, we encourage you to consult with a family law attorney familiar with issues such as elder care, Medicaid divorce, and estate planning to provide further insight into how best to proceed.

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