Would my husband - seperated 3 yrs - have any rights against a Power of Attorney and Living Will in State X [actual state name deleted -- we cannot address specific state laws]? I'm having surgery and want to make sure he won't if something goes wrong while I'm hospitalized.
This is a tough problem and is part of the basis of the sad and painful battle that raged in Florida for Terri Schiavo.
You should have the attorney that wrote your estate planning documents revoke your living will, health care proxy and power of attorney and put your estranged husband on notice that this has been done. You should have new documents prepared naming new people to act on your behalf. [Might your estranged husband be a little to willing to grant a DNR so he can inherit as your husband?]. You should have your attorney draft a new will and discuss what can be done to minimize your estranged husband's rights to your assets [although in a community property state this raises some tricky questions for which you really need legal guidance].
Finally, you must consult with a family law attorney to address the matrimonial aspects of this.
Every living will should have some provision for denying a spouse the ability to act in the event of separation or divorce. The tougher and more amorphous question is what happens in a case of separation that is not legally recognized? The flip side to this issue is you don't want to create uncertainty in appointing a spouse in a manner that will make every hospital or medical provider have to see proof that the marriage is intact. Most cases don't end up like the recent tragedy in Florida. If the document goes too far, then medical care providers will have yet another legal morass to deal with. Tough issues, no simple solutions that can apply to everyone. *Key point* this is why signing a couple of page standard internet living will form can be very dangerous.
Importantly, the issue you raised is an issue that every state really needs to evaluate. If you have a living will naming your husband, then your husband is your agent. Unless your living will includes a statement that in the event of separation your husband will not be your agent, the matter will fall to state law. Many if not most state laws probably don't address this issue and they should. There is a simple and expeditous way states can do this. Most or all states have special laws governing what minimum amount a surviving spouse can inherit if their spouse dies. For example, in New York EPTL Section 5-1.2 provides that if a spouse abandoned another sopuse they won't have the right to obtain this minimum level of inheritance. [I just happended to have a copy on my desk!!] A similar concept could be incorporated into the law of all states that would prevent a spouse that abandoned another from serving as health care agent. The rationale for refering to this law is that there is an existing body of law, definitions, cases, explanations allready on the "books". It is easier to create a new application of an existing law than to write law from scratch (although it might be necessary to add some new concepts). Consider how the implications of this would have resolved the Schiavo tragedy in such a different manner.
Great question. You've hit a key point no one in the media seems to have focused on. Very insightful. If you call 888-LAW-EASY we'll mail you a copy of my recent book: Living Wills & Health Care Proxies: Assuring That Your End-of-Life Decisions Are Respected.
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