Considering Divorce? Update Your Powers of Attorney

Powers of Attorney for Health Care and Property are common documents used in estate planning. If you’re in a bad marriage or in the midst of divorce, don’t wait until after divorce to review and change these documents.

These two Powers grant your “agent”, the right to make decisions regarding your property and health care, if you’re unable to make the decision yourself. One decision your agent may make is withdrawing life sustaining medical care.

Most married individuals name their spouse as their agents. Illinois law provides that if your spouse is your agent and you divorce or become legally separated, your spouse’s powers are terminated.

Yet, it may take years for a marriage to break down and a couple more before a divorce is filed and finalized. If you are uncomfortable having your spouse empowered to make health care and financial decisions for you, you need to act now.

If you don’t have a Power of Attorney for Health Care, a spouse—even an estranged one—may have authority under the Illinois Surrogate Act to make health care decisions for you, if you are incapacitated. So, if divorce is a 1) possibility or 2) reality and you want to eliminate the possibility of your spouse making health care decisions on your behalf, execute a Power appointing someone other than your spouse as your agent.

Resources: To learn more about these Powers and for samples of the forms, click on these Illinois Department of Aging  (or your own State’s Department on Aging’s site) links:

State of Illinois Power of Attorney for Health Care Document

State of Illinois Power of Attorney for Property Document

Michael C. Craven is a partner at Beermann Swerdlove LLP. He draws on his previous experience as a tax attorney to negotiate and litigate complex financial issues in matrimonial cases. He can be reached at (312) 621-1230 or via email at mccraven@beermannlaw.com. View his Divorce Magazine Profile and website.