We don’t like to think about it. But there will come a time when death is near, whether through age, accident, or sickness. Dealing with our emotions at this time, or the emotions of nearby family members, should be our primary focus.
It’s the last time to worry about who will make medical decisions on our behalf, especially if you’ve been through, or are facing, a divorce.
The legal answer to these fears are documents spelling out exactly who can make important decisions for you, when they can do it, and how they can do it. Powers of attorney are an important part of end-of-life care, of family planning, and of a last will and testament. Getting them properly can make a sudden medical tragedy immeasurably simpler, especially if you’ve been through a divorce.
It’s best to know as much as you can about them, therefore, long before you need one.
What is a Power of Attorney?
Technically speaking, the Power of Attorney, or POA, is the document itself. It’s the paperwork that spells out exactly who gets to make important decisions for you, and when those powers take effect. If you grant someone rights in a POA, you’re giving them the right to order people that you would normally order, sign things you would normally sign, and agree to things you’d normally agree to. If you can’t do these things yourself, your agent can.
An ‘agent,’ by the way, is the person named in your POA, authorized to make decisions in your stead. The POA allows the agent to be, in a legal sense, you – or, to use the correct term, the ‘principal.’ You, the principal, draft a POA that gives your friend the agent the power to make your decisions.
There are several kinds of powers of attorney. Each kind grants power to be used in a specific instance. That last bit should be heavily emphasized – given that these are legal documents meant to uphold what are often life-and-death decisions, you should note that the instances spelled out in a POA are extremely specific. There are only a few times when that instance is ambiguous, or when things can get messy. One of those times is divorce, and we’ll address that in a short while.
In the most common cases, POAs are used to allow someone to make business transactions for someone else. Suppose you’re buying a house that’s halfway across the country, and can’t be physically present for the closing ceremony. A temporary power of attorney would allow a friend to perform the ceremony on your behalf, and sign, initial, and sign again for the dozens upon dozens of documents required to finally own a home. You would then own the home, and upon completion of the ceremony, the power extended to your friend would vanish.
The vanishing part is important – it’s understood that no one can simply take a POA and use it to rob you blind, making decisions on your behalf that you would never consent to. That’s not how a POA is supposed to work. The agent is supposed to do things that you would do, were you able – not do things you never would agree to.
In fact, there are several things the agent can’t do.
What Can't a Power of Attorney do?
This is a short and intuitive list. The agent in a POA can’t vote for you. He or she can’t go to jail for you, or do something for which you are legally required to be physically present. And he or she most certainly can’t draft a Last Will and Testament for you. You’d best have that finished before you need the agent.
Basically, anything that gives an agent too much leeway with your decisions is not allowed. It’s why medical POAs are so important, and why choosing your agent can be so difficult.
What is a Medical Power of Attorney?
Simply put, a medical POA is the paperwork that gives an agent the right to tell doctors what to do with you if you are sick, unable to communicate, and in need of help.
There are several names for this – heath care proxy, or health care surrogate, or power of attorney for health care – but they all mean basically the same thing. The terminology often depends on the state in which the POA was issued, and different states will have different requires for granting and fulfilling one.
An agent for a medical POA might be signing off on medication, or agreeing to a surgery. In extreme cases, he or she might also be deciding whether or not to pull the plug. Thus, there are two very important things to consider before crafting a POA with an attorney – one, the person you make your agent had better be someone you trust. And two, it’s always better to have the paperwork than not have it.
This brings us to the first of several trouble spots with medical powers of attorney – divorce.
First, though, let’s get one question out of the way:
Can a Medical Power of Attorney be Changed Without Consent?
Short answer? No, absolutely not. Long answer? Again, no, but if you’re not aware of how the law works, you might find yourself on the bad side of a surprise.
This is a common question for couples going through divorce. So many things are changing, and being legally torn away, that it’s easy to imagine finding out that someone else has complete power over you, without you even knowing. Powers of attorney, however, are very simple in this respect – no one can simply take your right to decide what happens to you, and give it to a stranger.
That doesn’t mean it’s impossible to be caught off-guard, however. And there’s a few common ways that can happen.
How Can Things Get Complicated?
It all has to do with consent, and the ways that certain states automatically grant it, and automatically revoke it.
What if My Agent Decides to Walk Away?
It’s entirely possible that the agent named in your POA decides that he or she simply doesn’t want the responsibility anymore. Provided that this is put in writing, and signed in front of witnesses, the POA is no longer valid. A POA can’t force an agent to make these decisions if he or she isn’t comfortable with them.
This is all the more reason, mind you, to pick an agent you trust, and that can handle the responsibility and the pressure.
What if it’s my Spouse, and We’re Getting a Divorce? Is My Ex Still My Agent?
The unfortunate, but direct, answer to this question is, ‘it depends on the state in which you live.’
Consider the following situation – a husband has recurring heart issues, and often relies on his wife’s familiarity with his medication when he needs to go to the hospital. She, as his agent in a power of attorney, signs off on his medication if he’s incapacitated or on painkillers. The couple divorces a few years later, but remain friendly. During a visit, the husband returns to the hospital, and brings his ex to sign off on any medication he might need while in surgery.
Here’s the million dollar question: can the ex-spouse sign off on his meds?
Well, it depends. If the ex-couple is in Alabama, Colorado, Texas, Wisconsin, or nine other states, the answer is no. The divorce makes the POA null and void.
As for the other states? The ex is still the agent in a legal and valid POA, even if neither the husband nor wife is aware of it.
Complicating this is remarriage – across the country, the default agent for an assumed POA is a spouse. Even if the paperwork isn’t drawn up, a spouse still has the right to make these decisions – which means, if your spouse remarries, you no longer have any power, even if you both intended for you to keep it.
In short, without paperwork, your agent in a marriage is always your spouse. In a divorce, your spouse is no longer your agent – unless you’ve drawn up the paperwork in any one of 37 states. Then your ex is still your agent, unless he or she refuses in writing.
You can see how this might get complicated.
How to Avoid Complications from Divorce
A divorce can appear to take away your rights, but staying on top of your paperwork will save you from any bad surprises.
There are really only four simple rules here.
- If you’re married, and you haven’t drawn up the paperwork, do it.
- If you’re divorced, and you haven’t re-drawn the paperwork, do it again.
- Make sure the paperwork is current for the state you’re living in.
This is a simple rule that applies to nearly any legal document, anywhere in the country – make sure you have the right documents for the right state. Some states require a medical POA to be notarized, and some do not. A medical POA for California will not work nearly as well in New York, due to the different regulations. Check your state’s forms, consult a lawyer, and be thorough.
And last, but certainly not least,
- Talk things over with your ex, and your new spouse.
No POA can be drafted without the agent’s consent. Whoever you want making decisions for you, make sure that person knows. Make sure he or she lives nearby, can handle the pressure of making important and potentially risky decisions, and can be called upon at any time. This is not the job to give an indecisive someone halfway around the country.
In short, stay on top of the paperwork, make sure it’s current for the state you’re living in, and be in close communication with your choice of agent. Only then can you avoid the unsettling surprise of finding you don’t have an agent, or have an unwanted agent, in your medical power of attorney.