When you are planning your estate, you will likely choose someone to serve as agent in your power of attorney. The natural choice may seem to be your spouse. But there are some reasons why you may want to choose someone other than your spouse to serve as your agent for power of attorney (POA).
What is power of attorney?
First, it is important to understand what power of attorney is.
Power of attorney is a legal document that provides an agent the ability to make important decisions for you in the event that you are rendered incapacitated due to illness or injury. You decide how much authority your agent has when you execute your POA.
There are two types of power of attorney. Power of attorney for property gives the agent the ability to make financial decisions. Power of attorney for healthcare gives the agent the ability to make healthcare decisions.
Should my spouse be my agent?
It may seem obvious that your spouse should be your agent. After all, you trust them, and they likely know your wishes best.
But there are some reasons to choose someone other than your spouse as your agent for power of attorney.
One reason is age. If your spouse is of a similar age or older than you, it is possible that they could become incapacitated themselves or even pass away prior to the time you need your agent to serve as power of attorney. Thus, it would be impossible for them to fulfill this role.
A second reason is divorce. If you name your spouse as your agent in your power of attorney and later divorce, it is likely you no longer want that person to serve in that role.
In fact, Illinois law states that if you are separated or divorced from your spouse after assigning them as your agent, your spouse can no longer serve as agent as they will be considered “dead” for the purpose of agency.
While it is important to select a trusted person as your agent in your power of attorney, you may not want to choose your spouse to serve in this role. Instead, you may want to choose a younger relative, friend, attorney or another trusted person other than your health care provider to serve as your agent.