It is well known that an Enduring Power of Attorney cannot consent to the marriage of the person they are the Attorney for. But what about divorce? The Family Court of Australia recently granted a divorce for a dying man who had lost his capacity. The unusual aspect was that the application for the divorce was brought, not by the man but by his daughter who was his enduring power of attorney. She had lodged the divorce application on behalf of her father from his second wife. The court found that, in appropriate circumstances, an enduring power of attorney can seek a divorce on behalf of the person for whom they are the attorney.
In this case, the court ordered the divorce despite the wife's objections. The husband died the next day. The result was the wife could not challenge her former husband's estate after he died because she was not his wife at the time he died.
