Many divorcees never review their wills and estate plans. Those that do, often do it after they’re divorced. However, it may be advisable to make changes as soon as a marriage breaks down.
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 links:
Michael C. Craven is a well-known divorce attorney and a partner of the Beermann Swerdlove, LLP law firm in the Chicago area. He is highly respected among other divorce lawyers, judges and his clients. He is also a CPA and a LLM (Masters in Tax Law). Click here to email Michael for additional information about his services.