To Our Readers: This is our third successive column dealing with estate and health planning at the time of separation and divorce. The previous two columns can be found at www.flyingsolo.com.

While having a new will prepared after separation or divorce is important, so are durable financial and health care powers of attorney -- documents that are often overlooked.

Think about the potentially frightening scenarios: After six months of hostilities, you and your spouse separate, but neither has seen a lawyer. You are involved in an automobile accident and, as a result, are unable to express your wishes about your treatment – that is, you are unable to give informed consent. You don’t have a written health care proxy. Who makes your health care decisions for you?

Assuming you don’t have a court-appointed guardian, and assuming you have left no written instructions, your spouse will be asked to make your health care decisions. Generally, state law does not disqualify an estranged spouse unless 1) some type of temporary order has been issued; 2) the spouses have signed a written marital settlement agreement; or 3) a judge has signed a permanent separation order.

If an estranged spouse is not disqualified for these reasons, he or she will act for you unless/until an interested person – like one of your parents or adult children – petitions the probate court to appoint a guardian for you. Since health care decision-making is often time-sensitive, court proceedings to decide who will make decisions for a person unable to express his or her desires is not only counterproductive but can also be expensive.

While the alternative is relatively simple and inexpensive, it’s often not used: The health care power of attorney or the durable power of attorney that contains health care decision-making language.

Every state has its own version of the durable power of attorney for health care – sometimes called an advance health care directive -- and the durable power of attorney for financial purposes, in which some lawyers include language authorizing health care decision-making under certain circumstances.
By properly using these documents, you can include whom you want (and don’t want) to make health care decisions for you should you become unable to do so. For example, if you are separated, you may want to specifically exclude your spouse from being in this position – in large bold letters, if you choose – and appoint a sibling to do so.

But don’t appoint two people to make your decisions for you because if they disagree about your course of treatment, the hospital treating you -- or any other “interested person” -- can seek an order from the probate court to determine what care will be provided to you or appoint a temporary or permanent guardian.

Some folks mistakenly believe that their physicians can make these decisions. In all states, neither an attending doctor nor any other health care professional who may be involved in a patient’s care is allowed to participate in the decision-making process.

Still, if you haven’t signed a document and your physician certifies that your inability to give consent is temporary, and if there is also a determination that postponing your treatment until you regain the ability to give your own consent will not result in major damage to your condition, they will wait a reasonable time.

Taking the NextStep: There is no sense in taking chances when it comes to life or death decisions. Complete your health care documents today.