Sometimes people going through divorce lack decision-making capacity. At times, the lack of decision-making capacity is the cause of the divorce. Other times, the incapacity occurred long before or after the separation, or the cost of care is making it imprudent to stay married.
Regardless of the circumstance, it is important that you have a plan to protect yourself and the people you love. If you have a loved one who is incapacitated and going through divorce, someone needs to make decisions on their behalf and in their best interest during the process.
In these situations, a third party can be appointed to make decisions for the incapacitated individual. The ability to make these decisions on behalf of someone who is incapacitated can be achieved through either a power of attorney or guardianship.
It’s important to note that a spouse does not automatically gain the right to act on behalf of their incapacitated spouse – and, in the event of divorce, a spouse acting on behalf of their incapacitated spouse is inappropriate.
Getting a Power of Attorney
A power of attorney is a legal document that permits a third party to act on behalf of an individual, known as the principal.
The principal can decide whether to grant a general power of attorney, which allows an individual to act as the principal in all business and personal matters, or a limited power of attorney, which defines exactly what rights are being appointed. If the principal wants to appoint someone to make medical decisions for them, they must specify that by creating a document known as an Advance Healthcare Directive.
A power of attorney goes into effect either when the principal signs the document or upon a specified event, which triggers the power of attorney. There is no court involvement for powers of attorney.
Once effective, the third party listed on the power of attorney becomes the attorney-in-fact and can immediately begin making decisions on behalf of the principal. The powers authorized to the attorney-in-fact will cease upon the death of the principal, revocation of the document by the principal, or upon other specified events.
Many powers of attorney terminate upon incapacitation of the principal because the authority granted to an attorney-in-fact is based on the principal being able to act on their own behalf. However, this is when a power of attorney is often needed the most.
Durable powers of attorney specify that the attorney-in-fact remains in place if the principal becomes incapacitated.
A power of attorney provides flexibility and security for the principal. The principal can lay out the terms and scope of the authority, choose who they want to act as their attorney-in-fact, and determine the length for which the power of attorney remains in effect.
Further, the principal retains the right to change any of the terms (including who they appoint as their attorney-in-fact , the scope of their authority, or the length of time it is in effect) by revoking the power of attorney at any time while the principal is competent.
Entering into Guardianship
Guardianship is another option that allows a third party to make decisions on behalf of an incapacitated person. Guardianship is obtained through going to court.
Unlike with a power of attorney, which requires the principal to be competent when signing it, guardianship can only be awarded when someone is unable to care for themselves or make decisions for themselves.
Guardianship can be a straightforward process but can be costly if the guardianship is contested. Those who have a close relationship to the incapacitated individual are required to be given notice and have the right to contest a petition for guardianship.
Guardianship law is state-specific. Ultimately, the court gets to decide who becomes guardian and what their authorities are. As such, guardianship provides less certainty as to who acts on behalf of the incapacitated individual and what authority they have and may not necessarily reflect the individual’s wishes.
Best Practices to Protect Your Loved Ones
It is best practice to ensure that your loved ones are protected in the event that they are going through a divorce and cannot effectively represent themselves.
A power of attorney is a cost-effective and smooth process that best reflects the wishes of an individual in the event where they can no longer make decisions on their own. However, in order to be effective in the case of incapacity, a durable power of attorney needs to be entered into while the individual is competent.
If your loved one is not competent to enter into a durable power of attorney, guardianship is another approach in order to ensure someone has legal authority to make decisions for them, however it is a lengthier and more expensive process, and puts decision-making authority in the hands of the court.
Law Clerk Gwynn Mak contributed to this article.
