Attorney Kenneth Novenstern says divorce cases that involve a person who has been diagnosed with Alzheimer’s, will require one of the party’s to retain more than just a divorce lawyer.
It is unfair and downright cruel what Alzheimer’s can do to a person. According to The National Institute of Aging, Alzheimer’s is a brain disorder that slowly destroys an individual’s memory and thinking skills. As the disease progresses, the site also says, Alzheimer’s can limit one’s ability to function, and cause unpredictable behavior and language problems.
Every month of the year is designated to raising awareness about a particular cause. Some months have more than one meaning including June, which has a few including Alzheimer’s Awareness Month. The Alzheimer’s Association reports more than six million Americans of all ages have been diagnosed with Alzheimer’s. Approximately 73% are aged 75 or older and roughly 1 in 9 people aged 65 and older (10.7%) has Alzheimer’s.
Now, let’s look at the current divorce rates. The American Psychological Association says up to 50% of all first marriages will end in a divorce. That percentage jumps to 60% for all second marriages and 70% for third marriages. According to The U.S. Census Bureau, in 2021, 34.9% of all Americans who got divorced in the previous calendar year were aged 55 or older and get this, that was more than twice the rate of any other age group surveyed. As couples enter their golden years, their health begins to change and I, myself, have heard many seniors say how they often find themselves going from doctor to doctor on a regular basis. Sometimes the constant pressure of caring for another whose well-being is declining becomes too much, especially if one of the spouses has Alzheimer’s. In some situations, not all, the spouse decides to file for a divorce.
Kenneth Novenstern is a Partner at the New York-based law firm Fredman Baken Novenstern. For over 37-years Kenneth has devoted his skills to all facets of matrimonial law including litigation, mediation, collaborative and matters involving a person suffering from Alzheimer’s.
Ilyssa Panitz: June is Alzheimer’s Awareness Month. As a practicing Attorney with over 30-years of knowledge, you have experience in working on cases where one spouse is suffering from a cognitive decline and the other would like to leave the marriage. If Spouse-A wants to file for a divorce and Spouse-B may not understand because they are suffering from the disease, in New York where you are licensed is that still possible?
Kenneth Novenstern: There are different levels or degrees of cognitive decline. In my experience, it is likely that where someone suffers from limited but ongoing decline, the parties have already started a process to address Spouse-B’s decline and have likely engaged Elder Law/Medicaid Counsel. Counsel may have already had a family member designated as an Agent via a Power of Attorney. Spouse-B will have an Agent to assist in dealing with issues such as negotiating the terms of a Separation Agreement which would be part of the divorcing process.
Ilyssa Panitz: How does filing for a divorce work if one side (aka Spouse-B) cannot understand their husband/wife wants out of the marriage because of the stage of where the disease has progressed?
Kenneth Novenstern: If the illness has progressed to the point where Spouse-B does not understand and no interim steps have been taken, the next step would be filing to have an individual appointed as Guardian of the Person/Property for Spouse-B. In New York under Article 81 of the NY Mental Hygiene Law, once appointed, the Guardian can make decisions on behalf of Spouse-B.
Ilyssa Panitz: Finding the right attorney is hard enough for anyone going through a divorce. So, how would Spouse-B find legal counsel if they can’t make decisions for themselves?
Kenneth Novenstern: Usually the parties have already engaged counsel. If not, Spouse-A would seek out family members to start the Guardianship process.
Ilyssa Panitz: Aside from a divorce lawyer, do they also need to retain an elder law attorney?
Kenneth Novenstern: Yes.
Ilyssa Panitz: Can you please explain the role of an elder law attorney in a situation like this?
Kenneth Novenstern: The Elder Law attorney will advise the parties or Spouse-B concerning considerations such as Medicaid planning to maximize the assets to be received and hopefully retained by Spouse B, and the alternatives for the level of care required or in the near future to be required by Spouse-B, example: Community Medicaid or Nursing Home Medicaid.
Ilyssa Panitz: Would a person suffering from Alzheimer’s also need to appoint a power of attorney and if so, what does this job entail?
Kenneth Novenstern: Appointing someone as Power of Attorney would be an option and involves preparation of a Power of Attorney form. The Power of Attorney’s role is to act on the other’s behalf.
Ilyssa Panitz: If Spouse-B (the party suffering from Alzheimer’s) needs to retain a team do they also need a Guardian or a Guardian Ad Litem?
Kenneth Novenstern: The difference between a Guardian of the Person and Property and a Guardian ad Litem goes to the remaining level of comprehension and decision-making ability of Spouse-B. A Guardian ad Litem can be appointed for one proceeding where a Guardian of the Person and Property is broader in scope and is an ongoing appointment — not just for a single proceeding.
Ilyssa Panitz: If they do, does the court appoint someone or can the family (maybe the adult children) choose who should represent their parent?
Kenneth Novenstern: Yes.
Ilyssa Panitz: I want to circle back to something you said earlier. In New York, what is the Mental Hygiene Law (Article 81) and why does a person need to understand what this is if they are going through a divorce with a person who has a cognitive or physical decline such as Alzheimer’s?
Kenneth Novenstern: The idea is if someone (ex: Spouse-B) has deteriorated to where they cannot make decisions concerning their own care then the person who is acting as their Power of Attorney has to take further take action for that individual. That means the person who is Power of Attorney will have to go court and then get appointed also as the Guardian.
Ilyssa Panitz: Does that title have stronger power?
Kenneth Novenstern: Yes. That means the Power of Attorney title is no longer necessary because the Guardian title is much broader.
Ilyssa Panitz: In a situation like this, can one party receive alimony/maintenance?
Kenneth Novenstern: In New York, yes.
Ilyssa Panitz: If Spouse-B is not capable of writing the alimony/maintenance checks, who writes them and sends them?
Kenneth Novenstern: The Guardian would write the checks.
Ilyssa Panitz: If both parties own the house, can Spouse-A move Spouse-B out and into an assisted living facility?
Kenneth Novenstern: Yes, but the answer is more directly related to the level of care required by Spouse-B. Examples include a situation where Spouse-B needs a higher level of care than Spouse-A can provide, but short of a Nursing Home, and then complete care as provided by a Nursing Home.
Ilyssa Panitz: What happens if the parties are over 65 and receiving Medicaid. How can that impact a divorce?
Kenneth Novenstern: An individual is entitled to obtain Medicare in our society at age 65. Receiving Medicaid relates to the needs of the individual and assets under their control. This question raises the issues around Spouse-A and Spouse B-working together before Spouse-B suffers a total decline, so that Spouse A is not subject to losing the majority of their assets and so that Spouse-B can receive assets in the divorce (usually via Separation Agreement) and those assets will not be depleted by the cost of care either in an assisted situation or by Nursing Home care. Spouse-B may receive retirement assets which are not subject to depletion if they end up on Medicaid. Other steps that may need to be taken will depend on what level of decline are we talking about.
Ken Novenstern has been engaged in all facets of matrimonial law for over 37 years. He is a founding partner at Fredman Baken & Novenstern, LLP.