It is very likely that your legal team encouraged you and your spouse to create health care proxies, and powers of attorney while you were married. These documents provide protection for situations in which you are unable to make your own health or financial situations - most couples name each as their primary attorney-in-fact or proxy.
When you get divorced, these documents must be reassessed and possibly revised to ensure you have the full protection you desire and that someone you trust and feel comfortable with is in place to act on your behalf.
Powers of Attorney Basics
A power of attorney is a document that authorizes someone else to handle your financial and business affairs. Powers of attorney can be durable, meaning they go into effect immediately without any conditions. They can also be springing, which means they do not go into effect until a specific event or circumstance occurs, such as you becoming incapable of making your own decisions. Within the document, you choose someone to be your attorney-in-fact, authorizing them to act for you. The power of attorney allows your attorney-in-fact to manage your financial accounts, pay bills, file taxes, buy and sell real estate, make gifts, and other financial matters.
Health Care Proxy Basics
A New York health care proxy is a document that allows you to name someone else as your health care agent who makes health care decisions for you should you not be able to make them on their own. This includes conditions such as comas, dementia, and being under anesthetic. The agent steps in and makes decisions on your behalf when you cannot.
Impact of Divorce on These Documents
It is common to name your spouse as your agent and your attorney-in-fact in these documents. However, New York state law recognizes that when you divorce, you probably no longer want your spouse in this role. New York’s power of attorneys are automatically revoked if you divorce and your spouse is listed as your attorney-in-fact. New York health care proxies are revoked if you have named your spouse as your agent, unless the document specifies it should remain in effect even though you are divorced.
Revocation Before Divorce
While state law ensures that your spouse will longer have authority to make your medical or financial decisions after your divorce, it is likely that once you have separated or made the decision to divorce that you would like that authority to end immediately and not have to wait until you are formally and finally divorced. You don’t want someone you are in conflict with making life and death decisions for you, nor do you want them to have access to your money.
Notably, if you have a durable power of attorney in place, your spouse can move, sell, and take your separate assets, complicating your already complex divorce. Because of this, once you have decided to end your marriage, it is wise to consult your attorney about revoking and redrafting these documents as soon as possible.
Situations Where You Want Your Spouse to Remain in Control
In some relationships, the couple may part amicably and continue raising children, handling business together, and trusting and relying upon each other. In these circumstances, it is not unheard of to wish to continue the authority a power of attorney and health care proxy offers. In this case, it is imperative that you talk with your attorney and simply do not just leave your existing documents in place. You will likely need to revise them or re-execute them after the divorce to affirm that you want your former spouse to continue to hold this authority.
Effect of Remarriage
Should you and your spouse divorce and then remarry, any provisions in these documents that you have left in place automatically go back into force upon the remarriage. You do not need to re-execute or complete the forms again.
Other Documents to Review and Reconsider upon Divorce
In addition to your health care proxy and power of attorney, you may have other documents that will be impacted by divorce or that you may wish to revise once you decide to divorce. Your last will and testament should be revised or revoked if your spouse is mentioned in it since the divorce will automatically invalidate any bequests to your spouse or nomination of them as your executor.
Likewise, a divorce in New York will automatically revoke:
- Life insurance beneficiary designation naming your spouse
- Security registration in beneficiary format naming your spouse
- Designation of your spouse as a pension plan or retirement benefit plan beneficiary
- Designation of your spouse as a revocable trust or Totten trust (bank account) beneficiary
It is helpful to take the time to discuss the impact of your divorce on your estate planning documents with your attorney and to execute new documents that are in line with your estate plan moving forward after the divorce.