Medical Powers of Attorney and Next of Kin During and After Divorce

Going through a divorce can be overwhelming, with so many details to manage. One important aspect that often gets overlooked is updating your medical power of attorney and next of kin information. This is crucial, especially if you’re considering a divorce, in the middle of one, or have recently finalized it. Ensuring these documents are current means that your healthcare wishes will be respected, and the right person will make decisions for you in case of a medical emergency.

In this blog, we’ll talk about what a healthcare power of attorney is, why it’s essential, and what steps you need to take to make sure your medical wishes are honored during and after a divorce.

What is a Healthcare or Medical Power of Attorney?

A healthcare or medical power of attorney is a legal document that lets you appoint someone to make medical decisions on your behalf if you’re unable to do so. This person is called your agent or proxy. They can make healthcare decisions based on your preferences and best interests.

Why is a Healthcare Power of Attorney Important?

Neurointensivist, Aimee Aysenne, MD says that having a healthcare power of attorney is critical to ensure that you receive the medical treatment that you want when you are unable to communicate your wishes. “Without a medical directive, physicians, hospitals, and clinics turn to family who often disagree on medical treatment.”

Dr. Aysenne gives the following reasons for keeping updated healthcare powers of attorney: 

Ensures Your Wishes Are Honored : It ensures your medical care preferences are respected, even if you can’t communicate them yourself.

Provides Clear Guidance : It gives clear guidance to healthcare providers about who can make decisions for you.

Prevents Family Disputes : It can prevent disputes among family members about your medical care.

Offers Peace of Mind : Knowing that someone you trust is in charge of your medical decisions can provide peace of mind for you and your loved ones.

What Decisions Cannot Be Made by a Healthcare Power of Attorney?

While a healthcare power of attorney gives your agent broad authority, there are some limits. Your agent cannot:

Refuse or Withhold Pain Relief : They can’t refuse or withhold pain relief if it’s necessary for your comfort.

Force Treatment Against Your Will : They can’t force you to undergo treatment if you’ve previously expressed a desire not to have it.

Make Financial Decisions : They can’t make any financial decisions for you. This requires a separate financial power of attorney.

Is a Healthcare Power of Attorney Still Valid After Divorce?

It depends, in many states, a healthcare power of attorney that names your spouse as your agent is automatically revoked upon divorce. In those states, if you want your ex-spouse to continue to have this authority, you’ll need to re-execute the document after the divorce. Conversely, if you don’t want your ex-spouse to have this authority, you need to update your documents as soon as possible to remove them as your agent.

Remember that this is state specific and you should consult with a lawyer in your jurisdiction to determine how your medical / healthcare power of attorney will be affected by a divorce.

Who Makes Medical Decisions if There is No Power of Attorney?

If you don’t have a healthcare power of attorney and become incapacitated, the following individuals, in order of priority, will typically make medical decisions for you:

1. Your spouse

2. Your adult children

3. Your parents

4. Your siblings

However, this can vary by state, so it’s essential to have a healthcare power of attorney in place to ensure that the person you trust is making decisions for you.

5 Important Things to Consider for Your Healthcare Power of Attorney

Choose the Right Person : Pick someone who knows you well and whom you trust to make difficult decisions in line with your wishes.

Discuss Your Wishes : Have a detailed conversation with your chosen agent about your healthcare preferences, including your thoughts on life support, resuscitation, and other critical issues.

Review and Update Regularly : “An out of date directive or power of attorney may be just as detrimental as no power of attorney at all.  Doctors may be provided directives from espouses that are still valid but conflict with the family’s decision.” says Dr. Aysenne. You can protect yourself and your family by reviewing and updating your healthcare power of attorney regularly, especially after significant life events like divorce.  

Provide Copies : Make sure that your agent, your healthcare providers, and any relevant family members have copies of the document.

Consider a Backup : Designate an alternate agent in case your first choice is unable or unwilling to act on your behalf.

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