If you are currently in the process of a divorce, your head is likely swimming with all sorts of important facts and questions:

  • Who is going to get the house?
  • What about the children?
  • How did you even get to this point?
  • And how are you going to move on with your life after this earth-shattering experience?

Nobody ever said this was going to be easy and you knew this going in. So before you have a total meltdown, sit down, take a deep breath, and tackle that giant mountain of paperwork in front of you. Read it back to front and make double – no triple – certain that you have not missed any important details.

One thing that you might not have even considered amidst the sea of paperwork and information are issues related to your health. Your physical health might be the furthest thing from your mind right now but it is 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. After all, this is your spouse, your other half, a part of you that knows every pertinent detail of your life. 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 and health information 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 situation occur during or after your divorce. Imagine, if you will, that you become somehow disabled or incapacitated during the process of the divorce and your spouse holds power of attorney to make medical decisions for you. If that thought does not scare you into action, you may just be a lost cause. But if you are not one to take chances, read on for more information about Power of Attorney and what you need to know to avoid your life turning into a complete nightmare.

What is a Medical Proxy?

Okay class, before we begin with the details; let’s start with some simple definitions. Who can tell me what the term Medical Proxy means? Some of you may have heard this phrase before while others may have heard a different term that means the exact same thing. As previously mentioned, laws are different for each state and so are the names of the document. As such, a Medical Proxy may also be known as Power of Attorney, Health Proxy, Health Care Agent, Health Care Surrogate, or Attorney-in Fact (depending on your state of residence). So what does it all mean? It’s quite simple really – Power of Attorney (or whatever you and/or your state choose to call it) is simply a document that allows you to appoint another person to make decisions on your behalf in the event that you are unable to do so (such as in the case of disease, coma, or other trauma). A person with power of attorney may be able to sign your name, sell your property, or a number of other things. You can specify the power of attorney to be either general or specific. A general power of attorney will allow the appointed person (also called a proxy or agent) to make all sorts of decisions for you. A specific power of attorney allows you to decide what types of decisions the proxy can make on your behalf. A Medical Proxy or Medical Power of Attorney is one that allows the appointed person to make medical decisions for you.

One piece of advice, having a power of attorney before, during, and after your divorce will save you and your family a lot of headache, not to mention money. So either before or during the divorce process, make sure you (or an appointed representative) review(s) all the documents in which your spouse is named as your agent, such as your Power of Attorney. You may want to revoke the designation to avoid giving your soon to be ex-spouse decision making authority. Many 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.

How do I make my Medical Power of Attorney legal?

Now that you know a little about what is a Power of Attorney, the next question to ask is “how?” So how do you legalize your medical power of attorney? Remember earlier when we mentioned that these laws are governed by the state? 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 it is best to file a medical proxy in each one of those states, just to be on the safe side.

When Does a Power of Attorney for Health Care go into effect?

The legal responsibilities of your assigned medical proxy 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. Boom! You are once again free to make your own decisions (and deal with the aftermath of whatever decisions the person you appointed made for you).

Where Do I Get the Forms?

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 Power of Attorney with the Living Will, in which case they will often appear in the same document called Advanced Directives.

What Powers or Authority is a Medical Proxy Granted?

During the time you are unable to direct your own treatment the Medical 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. However, a medical proxy is not given any authority over your financial or business decisions. This is another sort of proxy altogether (also one you might want to consider, but this is not the time nor the place – we are discussing your health now).

Divorced Parenting and Medical Proxy

To name a medical proxy for your children after divorce requires both living parents fill out and sign a 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. Also, make sure that the both forms are given to the health care power of attorney at the same time. CAUTION: 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.

Changes to your Power of Attorney upon Divorce

The laws in each state will vary 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.

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 advised:  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.

Review your plan

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. The following documents should be reviewed and revised: Beneficiaries, Guardians, Trust documents, Advanced medical directives, Durable 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 if necessary; because 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.

 

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