The Health Care Power of Attorney allows the creator to name the individual (agent) who will make decisions regarding the creator’s health care in case of his or her incapacity (determined by the creator’s physician). The form also provides the creator’s choices regarding organ donation and life sustaining treatment. The Power is effective upon signing and until the creator’s death.
Generally, the spouse is named as the initial agent for health care, but what happens to the Power of Attorney if the couple gets divorced? The Illinois legislature has provided a direct answer for this situation. Section 2-6(b) of the Illinois Power of Attorney Act states:
If a court enters a judgment of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency.
Therefore, if a couple divorces and the creator of the Power becomes incapacitated prior to having a new Power of Attorney prepared, the successor agent will automatically step in as agent, rather than the former spouse.