After another bitter battle with your soon-to-be ex, you jump on your roadster to get the hell away from her. Miles down the road, you’re broadsided by an idiot in a sedan, and now you’re knocked out cold in the hospital. Who they gonna call? If you haven’t changed your health care power of attorney, it may well be your spiteful ex who struts in and calls the shots for you.
You’re Stuck With Designated Contacts Until You Change Them
With all the forms and paperwork that go with divorce, your physical health might not be on your mind right now, but it’s vital that you realize the importance of such things as power of attorney, choice of health care proxy, and estate plans in general. For most of us, our spouse is listed as our emergency contact, our go-to person for any sort of emergency, and the one who holds the power to speak for us. When you were married, this was a huge convenience and safety net. Not anymore.
Now, you must remove all power your spouse holds and pass it on to someone else, someone with your best interests in mind, someone you trust to handle your personal matters in the event that you become incapable of handling them yourself.
Your health care power of attorney is not something you want to put off, because tomorrow is unpredictable and anything could happen.
The time to update your health information is now. It is important to have all your ducks in a row should an emergency occur during or after your divorce. Do you want your estranged or ex wife to make medical decisions for you? If that thought doesn’t scare you into action, you may just be a lost cause. But, if you’re not one to risk being kicked while he’s down, read on for more information about Power of Attorney and what you need to know to avoid your life turning into a complete nightmare.
Know The Difference Between Different Authorizing Documents
You may have heard of medical proxy before while others may have heard a different term that means the exact same thing. Laws are different for each state and so are the names and powers granted by certain types of the document. As such, a Medical Proxy may also be known as Medical Power of Attorney, Health Proxy, Health Care Agent, Health Care Surrogate, or Living Will, depending on your state of residence. So what does it all mean?
Durable Power of Attorney
A Durable Power of Attorney is a very powerful document that allows you to appoint another person to make decisions on your behalf now, and in the event that you incapacitated. A person with power of attorney may be able to sign your name, sell your property, pay your bills and make health care decisions on your behalf.
A more restrictive power of attorney allows you to specify what types of decisions the proxy can make on your behalf, for example handling a real estate transaction for you.
No power of attorney may legally allow the proxy to vote on your behalf in a general election, nor to enter into a marriage on your behalf.
Health Care Power of Attorney
Also called a Medical Proxy or Medical Power of Attorney, this document limits the appointed person to making medical decisions for you at such time you are unable to make informed health care decisions on your own.
Under medical privacy laws, you may choose to provide your medical providers with written permission to discuss your health status with specific individuals, but that does not equate to a legal health care power of attorney.
Legal Considerations for Designating an Agent
Before or during the divorce process, make sure you, and/or your attorney, review all the documents in which your spouse is named as your agent, such as a Power of Attorney. You may want to revoke the designation to avoid giving your soon to be ex-spouse decision making authority.
Some states will automatically terminate your spouse’s authority as agent once an action is filed for divorce, annulment or legal separation, unless the Power of Attorney specifically states otherwise. However, this may not be the case in every state so you are best advised to consult with your lawyer or revoke any earlier Power of Attorney. Execute another Power of attorney (or medical proxy, or health care agent, etc. depending on what it is referred to according to your state law) and name a trusted family member or friend as your agent.
This means you must complete the medical proxy form for your state, which includes the information required by the law in your state. In most cases, the document must be signed before two witnesses or a notary public in order to be legally recognized. The information on each form varies from state to state so the legal status of the Power of Attorney for Health Care signed in one state may not be fully valid in another. If you spend considerable time in more than one state you may want to file a medical proxy in each one of those states, just to be on the safe side.
Triggering a Power of Attorney for Health Care
The legal responsibilities of the person designated as your health care power of attorney to make decisions on your behalf go into effect only after a physician has determined that you are unable to make medical decisions for yourself. This could be as a result of illness, severe injury, coma, or any other health-related issues that leave you unable to speak for yourself.
Once a doctor has determined that you are unable to make these decisions on your own, the power of attorney kicks in and your fate is now in the hands of the proxy. As you have probably figured out by now, this legal status only lasts for the duration of your incapacity. So, if/when you recover from previously mentioned illness, injury or medical procedure, and are able to communicate your own wishes for your healthcare, the Health Care Agent (proxy) will no longer have the authority to make those decisions for you.
Medical Directive Forms are Free and Readily Available
The forms for your state’s Health Care Power of Attorney are available from your doctor, from a local hospital, a nursing home, or online from your state government website. Many states have combined the health care directives with the Living Will, in which case they will often appear in the same document called Advanced Directives.
Be Aware of the Scope of Powers You Want To Grant
During the time you are unable to direct your own treatment the person acting as your Health Care Power of Attorney will grant the person of your choosing the legal power to speak on your behalf. This means that person would have full rights to be informed by your doctor (or doctors) of your medical condition and to decide the course of treatment. They will have full access to your medical records and the authority to make choices on everything your treatment will entail including tests, surgery, or medication. They will have the right to choose which doctors, specialists, hospitals or other agencies will provide your medical care. Since the scope of authority varies slightly from state to state, you should review your state’s medical power of attorney form to ascertain the specific rights and duties granted in your state. You are free to ad specific instructions to the Health Care Power of Attorney document tailor it to your wishes.
Divorced Parenting and Medical Directives For Your Children
Check with your attorney before designating a third party to act as the health care proxy for your children. It may be void unless both living parents fill out and sign the document individually. The laws for witnesses are different depending on the state of residence. If you and your ex-spouse live in different states it is wise to complete a Power of Attorney for Health Care in both states. If you complete both states’ forms at the same time you will ensure the information remains consistent. If you change your mind later and decide to revise the document be sure to revise the forms for both states simultaneously to preserve consistency.
Divorce May Impact Your Estate When You Die
The laws in each state will vary regarding divorce and probate, but generally your spouse is no longer your spouse for purposes of your Living Will once the judgment for divorce or annulment has been entered into the court records. Many states revoke any provisions under your Will that name your spouse as executor, trustee and guardian, or medical proxy or which give property to your spouse. The exception would be if the document specifically declares otherwise. Don’t guess, have your legal documents reviewed by competent counsel.
If you and your spouse divorce, your children have claim to inherit your estate. In the event your children are minors, the court would appoint a guardian to manage their inheritance and that guardian would most likely be your former spouse. To avoid this potential legal complication, you should update your estate plan and consider leaving your assets in a trust for the benefit of your children, managed by a trustee of your choosing.
Be aware that being physically separated does not terminate the spousal relationship. While separated, your spouse will retain certain spousal rights, referred to as the “elective share” that entitle your spouse to a portion of your estate. To avoid this potential problem, a legal separation should be executed by the parties agreeing to waive such rights.
Act Now To Protect Yourself and Your Kids
Whether you are considering a divorce or have received a final judgment of divorce, it is wise to review and update the provisions you had in place prior to divorce, including advance medical directives, any power of attorney and your will.
To be certain your estate plan protects you and your loved ones – both during and after your divorce – it is important to communicate your exact wishes and execute the documents according to the laws governing your state. Seek legal counsel as needed. Leaving the future of your medical care, children’s care, assets and business to anything less than certainty is an invitation to a potential legal battle or a miscarriage of your intentions. For the safety and well-being of your family, it is important to make sure you know exactly what will happen to them and you in the event of an accident, emergency, or any other unexpected and unpredictable situation.
Tell us your experiences with health care or other authorizations during separation and divorce in the comments below!
For more related information, see what A. Baker has to say about Defining Beneficiaries in Your Post-Divorce Will and Estate and what Debra Giuliano shares about What To Do When Your Spouse Dies Before the Divorce is Final.
Guyvorce helps you think of everything, so go ahead and share!