What Is a Power of Attorney
A power of attorney is a legal document that grants someone (called an agent) the authority to make decisions on your behalf in the event you become incapacitated. For example, if you suffer from a disabling injury that leaves you in a coma, a power of attorney for health care lets your named agent—such as your spouse or a relative—consent to a certain medical procedure on your behalf.
Powers of attorney are commonly used in estate planning. A power of attorney may be granted for specific purposes, such as for health care and finances.Typically, a person grants power of attorney to someone whom they can trust to make decisions in accordance with their wishes.
In many cases, spouses name each other as their agents. However, in some jurisdictions, when one files for divorce or legal separation, a power of attorney granted to a spouse may no longer be valid. In Wisconsin, for instance, an agent’s authority under power of attorney for finances is terminated when a divorce or legal separation action is filed. As a result, powers of attorney should be reviewed and updated in case of divorce or separation.
Termination of Health Care Powers of Attorney
Powers of attorney may be granted to allow another person to make important health care decisions on the grantor’s behalf. In Wisconsin, a power of attorney for health care is revoked upon obtaining a divorce and the entire power of attorney for health care is invalid.
Wisconsin Statutes § 155.40(2) provides, “If the health care agent is the principal’s spouse or domestic partner under ch. 770 and, subsequent to the execution of a power of attorney for health care instrument, the marriage is annulled or divorce from the spouse is obtained or the domestic partnership under ch. 770 is terminated, the power of attorney for health care is revoked and the power of attorney for health care instrument is invalid.”
Importantly, this type of power of attorney remains in effect after filing for divorce or separation and is only revoked after the divorce is obtained. This means that if you grant your spouse a health care power of attorney and suffer from an incapacitating illness after filing for divorce but before the divorce is finalized, your soon-to-be former spouse can still make health care decisions on your behalf.
Termination of Financial Powers of Attorney
A financial power of attorney grants someone legal authority to make financial decisions on another’s behalf. Under Wisconsin law, financial powers of attorney are governed by the Uniform Power of Attorney for Finances and Property Code, Wisconsin Statutes § 144.01 et seq. This type of power of attorney may grant your agent the authority to act on your behalf even if you are not incapacitated. This type of power of attorney may also be durable, meaning it would also survive your incapacity, allowing your agent to continue to make decisions on your behalf if you are unable to make them for yourself.
When a divorce action or separation occurs, financial powers of attorney are not terminated under the same conditions as health care powers of attorney. Per Wisconsin Statutes § 244.10(2), “An agent’s authority terminates when…[a]n action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides.”
As a result, the act of filing for divorce or legal separation automatically revokes a financial power of attorney. Thus, for example, if you file for divorce and subsequently become incapacitated, your soon-to-be ex will generally not have the authority to manage your financial affairs. Unless you have named a second choice, there is no one who has the authority to make decisions on your behalf.
If your spouse is named as your agent, it is important to review your financial powers of attorney to make sure there is someone with this authority if you are incapacitated.
If you are not married but in a committed non-marital relationship, and have named your partner as your financial power of attorney, your partner will still have the authority to handle your finances if you do not update your power of attorney for financial purposes. If you are ending your non-marital relationship and do not revoke or update your current financial power of attorney, your partner will continue to have the ability to make financial decisions on your behalf if you become incapacitated.
Consult Balisle Family Law Legal Counsel, S.C. for Legal Advice
If you are getting a divorce or otherwise ending a relationship, it is highly recommended that you consult an experienced family law attorney for advice. The end of a relationship—including marriages—can have a major impact on things such as powers of attorney. According to research, persons who are going through a divorce are at greater risk for certain health conditions and injuries. Therefore, it is vital that you consult with an experienced attorney from Balisle Family Law Legal Counsel, S.C. for a comprehensive understanding of the legal impact of your divorce.
Contact our firm online or call us at (608) 765-1001 to schedule a consultation about your family law case today.