So.. you’ve filed for divorce. You are certain that the marriage cannot be saved.
If something were to happen to you after your divorce is filed, but before it becomes final, what would happen? Who would make the medical decisions if you couldn’t speak for yourself?
In Texas, there is no such thing as a “legal separation”. You are either married, or you aren’t.
Let’s explore what would happen if you were ill or injured and unable to speak for yourself.
Do you already have a Health Care Power of Attorney or other such paperwork in effect? If so, have you appointed your spouse to speak for you? If the answer is “yes”, you should know that those documents are in effect until they are legally withdrawn or replaced. So, if you have named your spouse, legally that is who would still be able to speak for you.
However, in the above situation, your “alternate” who is listed in your current documents or your other adult family members may bring it to the attention of the doctors and hospital that you are in the process of divorce and that they wish to speak for you instead. Of course, the health care facility would need to perform their own “due diligence” and “risk management” and look into the facts and legalities of your situation, and quickly.
But meanwhile, time is passing. And you are in a critical situation. Someone has to be able to step up and make that important decision about whether or not the surgery is going to proceed that may save your life…. Result? Will your spouse or another be your “voice”? It depends on the situation…
In the second scenario, you are unable to speak for yourself, but you have no paperwork in effect. However, your spouse is still your spouse, and there can still be a delay while your spouse is contacted, the legalities and practicalities of the situation are sorted out, and the health care providers are comfortable that they have the proper persons(s) making decisions. Final result? It will depend on the circumstances and facts of each situation. Who will it be?
In the best scenario your health care power of attorney (as well as your durable power of attorney for conducting day-to-day financial business) is current. That means that you have signed a current document that names someone other than the person that you are currently divorcing as the proper person to make decisions or conduct business for you when you are unable to do so for yourself. There are no surprises and no guesswork.
What if you still want your spouse to speak for you, despite the fact that your marriage is ending? You have two choices a) do nothing or b) sign a new document or addendum that confirms your choice of your spouse as your agent, despite the fact that you are divorcing. This removes guesswork, assures the health care providers that they will not be facing legal liability for honoring your choice, and puts other family members at ease. Otherwise, you are putting your spouse in a difficult situation and precious time may still be wasted.
We advise all of our divorce clients to consider allowing us to update their Health Care Powers of Attorney and Durable Power of Attorney documents when they file for divorce.