Cook County case opens door to divorce for mentally disabled

Cook County case opens door to divorce for mentally disabled

Update 10-6-2012

http://www.nwherald.com/tablet/article.xml/articles/2012/10/04/14a095feb5764f7f9add7b0bb8c25c9c/index.xml


The Associated Press



3:08 PM CDT, October 4, 2012


Ruling in a case brought in Cook County, the Illinois Supreme Court opened the door Thursday to divorce for people who need guardians because of mental disabilities.



For years, Illinois has barred guardians from seeking a divorce on behalf of the mentally disabled people under their protection. That meant the disabled person could not get a divorce unless his or her spouse started the process.



The ban affected people with severe brain damage, but it also covered those who could make their wishes known — people with Alzheimer's, for instance, or with a mental illness whose effects come and go, according to the advocacy group Equip for Equality.



Thursday's ruling said an outright ban is no longer appropriate. It could leave vulnerable people “at the complete mercy” of spouses who abuse them or exploit them financially, Justice Charles Freeman wrote for the unanimous court.



“Either the guardian can act in the best interests of the ward for all personal matters, or for none at all,” Freeman said.



Equip for Equality praised the ruling, calling it a “major change” that will look at each disabled person individually.



John Whitcomb, senior attorney for the group, said guardians will now be able to file for divorce and then a judge will decide if there is clear and convincing evidence that it would be in the disabled person's best interests.



In some cases, that will mean weighing the evidence without any help from the person directly affected. But in others, the people with disabilities will be able to speak for themselves.



“There are people who can clearly articulate their desires and can tell the court but have a guardian to actually initiate it,” Whitcomb said.



The ruling involves a Cook County couple, Jan and Marcia Karbin. Marcia suffered brain damage in a 1997 car accident. Eventually, Marcia's daughter was named her guardian.



After financial disputes with the husband, Marcia's guardian wound up seeking a divorce for her mother. The divorce court and an appeals court said she didn't have authority to do that.



An attorney for Jan Karbin did not immediately return a call seeking comment.


http://www.chicagotribune.com/news/local/breaking/chi-high-court-uses-cook-county-case-to-open-door-to-divorce-for-mentally-disabled-20121004,0,601532.story