Wills & Estates NEWS/BLOGS ARCHIVE


DIVORCING? Get Your Power of Attorney in Place At the Start

October 11, 2018 by Kathryn Lazar

WHAT HAPPENS IF YOU BECOME INCAPACITATED DURING YOUR DIVORCE?

It is important at the outset of a divorce to sign (or change, if signed previously) a power of attorney and a health care proxy.

A power of attorney is a legal document appointing another to act as your agent, either generally or in particular areas described in the document. For example, your spouse may have power of attorney to make decisions relating to your brokerage or bank account, including emptying it. A health care proxy is a document under which a patient appoints an agent to make health-care decisions on behalf of the patient when s/he is incapable of making and executing certain medical decisions. For example, under a health care proxy, your spouse may be the one who makes decisions about your hospital care if you are in a coma, including whether or not to resuscitate you.

You may not want to be in a situation where, if you become ill or incapacitated during your divorce, your soon-to-be ex is the person you’ve designated to be in charge of important decisions affecting you financially and medically. If there is no power of attorney, by default the right to make those decisions goes to your spouse. If your ex-to-be is reasonable, s/he may stand aside and allow a family member to step in and make critical decisions. However, such deference may not be sufficient in the eyes of hospitals, banks, and others who must rely on the legal authority of the agent/decision maker. These institutions accept undocumented authority at their peril. If there is no power of attorney or if there is a dispute involving an incapacitated person, it may be necessary to go to court and file a guardianship proceeding to establish who will have legal authority to make decisions on that person’s behalf. The guardianship proceeding may create a gap in decision making authority, and, needless to say, distracts those involved at a time that is already stressful for them.

However, if you sign a new power of attorney and a health care proxy early on in the process of obtaining a separation or divorce from your spouse, then there can be no gaps in authority to make decisions in the event of your incapacity.

It is also important to understand that there can be differences in how a situation involving incapacity is handled in a litigated divorce as compared to a collaborative divorce. If you are in litigation, you may get no cooperation from your soon-to-be ex and his/her attorney, which can make things unnecessarily complicated and difficult, potentially causing a situation where necessary medical and financial decisions are delayed. In collaborative divorce, more likely than not your spouse and his/her attorney will be more helpful and cooperative. This could make all the difference if you become ill or incapacitated during your divorce.

We seek to educate our clients to take the rights steps from the beginning, in order to avoid any potential issues in the case of unlikely, but not impossible unfortunate circumstances. Be sure to discuss these issues with your attorney.