There are basically two types of Power of Attorney or POA. The first is ?Immediate? and the second is ?Springing?. An “Immediate” power of attorney becomes effective as soon as the person you have designated as capable of managing your financial affairs signs the document in the event you become incapacitated. This person then has immediate rights to act on your behalf for all financial and legal decisions decreed within the document.
A “Springing” Power of Attorney becomes effective when you become ‘incapacitated’, and exists primarily as a Power of Attorney for health care. This document allows a designated person to make medical decisions on your behalf in the event you no longer are able to speak for yourself. These two documents, along with a living will, outlines your wishes for your continued medical care and makes sure that your health and financial matters remain in the hands of the trusted person or persons that you choose.
Powers of attorney are fashioned to allow a person, or the agent, to care for financial transactions for the person being cared for, or the principal, from handling banking transactions to maintaining a safe-deposit box. POAs are written to be general or can be defined by outlining special circumstances. A power of attorney generally is terminated when the principal either dies or becomes incapacitated. A principal can revoke power of attorney at any time.
While healthcare POAs are considered ‘Springing’ functions, and most financial POAs are ‘Immediate’, concerns do exist if you leave your decision unchanged in a divorce.
Does a Divorce Invalidate My Power of Attorney?
Power of Attorney designations do not automatically end when you get divorced in most states. If the document was created in: Alabama, California, Colorado, Illinois, Indiana, Kansas, Minnesota, Missouri, Ohio, Pennsylvania, Texas, Washington, or Wisconsin, the POA is terminated. The remaining states however, must have additional communication to revoke the existing POA.
In Illinois a divorce decree revokes such a designation. In addition, if you want your ex-spouse to remain your agent, you must execute a post-divorce Power of Attorney. In all states, an agent spouse can use either power of attorney before formal revocation and/or final decree.
POA Best Practices
Revoke your power of attorney in favor of your spouse as soon as you file for divorce, or earlier. By doing this, you will avoid any complications with your spouse using the power of attorney as you go through divorce proceedings. Have your attorney prepare a new POA, specifically revoking the former POA that is in favor of your spouse. Communicate your revocation to your agent-spouse, which alerts your spouse to his/her liability for damages.
Alert your divorce attorney to your estate plan; you may consider contacting an attorney who also practices in estate planning to make sure your estate planning is properly carried out.
Contact all institutions who may have your old POA on file, to include: medical facilities, financial institutions, etc. These parties can continue to rely on the previous document until they are notified, so make sure you alert them to the change of POA.
Every person’s situation is unique to individual circumstances. Our advice to you is to consult with your divorce attorney and seek additional counsel from a qualified estate planner should you question the validity of your POA following divorce. Do not hesitate to contact the Law Offices of Barbara Sherer for a consultation. We are more than happy to help determine any modifications you might need to make to your estate plan in an effort to keep it in line with your wishes.