Divorces can take a while to finalize, and unfortunately, sometimes one spouse suffers a significant injury or health problem while the divorce is pending. Who is legally able to make decisions for the incapacitated spouse in Florida while a divorce is pending? Who is legally in control of the incapacitated spouse's property while the divorce is pending?
If the incapacitated spouse had documents in place, then they will control what happens. These documents might include a Durable Power of Attorney, a Trust, a Healthcare Surrogate, or other documents. It is important to revoke old documents and have new ones prepared when going through significant life changes, such as a divorce or even estrangement or separation. If none of these documents have been prepared, then Florida law will determine who the decision maker is for the incapacitated spouse.
Let us take a quick look at the Durable Power of Attorney. If the incapacitated spouse has named their spouse as the agent under the power of attorney, Florida's new Power of Attorney Act provides for an automatic termination of all authority granted to the spouse under the power of attorney upon the filing of an action for dissolution of marriage. Fla. Stat. 709.2109(2)(b).
If you are estranged from your spouse or in the process of seeking a divorce, it makes sense to re-do your existing Power of Attorney and prepare a new one naming a person other than your spouse as the agent. The old Power of Attorney should be revoked and destroyed.
Now, let's take a quick look at Trusts. Many people use revocable living trusts as an estate-planning and probate-avoidance device. The other spouse is often named as either the initial Trustee or the successor Trustee in the trust documents. If the trust documents do not address the situation of divorce or filing for divorce, then the other spouse may continue to serve as Trustee during and after divorce. After a spouse becomes incapacitated, then they can not change the trust documents, and there may be no way to remove the estranged or ex-spouse as Trustee. As soon as a divorce is contemplated or likely, the settlor of a trust should consider amending the trustee succession or the power of removal of trustee provisions so that the estranged or ex-spouse does not become Trustee of an incapacitated spouse's trust during or after a divorce.
Finally, let's take a quick look at Health Care Surrogate Designations. This designation is effective until it is revoked. If you are contemplating a divorce and you would not want your estranged spouse making your life-and-death health decisions for you while you are incapacitated, then you should revoke the prior Health Care Surrogate Designation and prepare a new document designating someone that you trust.
If there is no Health Care Surrogate Designation, then Florida law states that the health decisions are made by those in the following priority: a judicially appointed guardian, or if none, the patient's spouse. Thus, if an incapacitated spouse were hospitalized and unable to make health care decisions, then the estranged spouse could have priority in making health care decisions. If a divorce is contemplated or pending, it is highly recommended that you prepare a new Health Care Surrogate Designation to appoint a trusted person to make health decisions in the event of incapacity.
If you live in Florida and are considering a divorce, you may call the office of Cusumano & Dupee, P.L. to schedule a consultation to review any documents that you have and to revoke old documents and prepare new ones. Both Zana Dupee and Barbara Cusumano assist clients with preparing needed documentation appointing decision makers for health and financial matters. If you would like to schedule a consultation, you can call Zana Dupee at (352) 379-5900 or Barbara Cusumano at (352) 379-2828.
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