Planning Ahead: Divorce and Advanced Health Care Directives

As former NBA star Lamar Odom continues to make progress following his recent hospitalization after being found unresponsive in a Nevada brothel, the headlines swirl regarding the involvement of his soon-to-be ex-wife, Khloe Kardashian, in his medical care.

Multiple news outlets report that Mr. Odom and Ms. Kardashian signed their divorce judgment in or around July, 2015, but their Judgment of Dissolution — the final decree of divorce terminating their marital status — has not yet been entered by the court.

Therefore, Mr. Odom and Ms. Kardashian are still legally husband and wife. As a result, without Mr. Odom having an Advance Health Care Directive appointing someone other than his wife to make medical decisions on his behalf, Ms. Kardashian has been made responsible for this great task. 

Prohibited Actions

This fact is being fussed about in many celebrity news outlets, but it has also raised legal questions and issues for people currently embroiled in a divorce. Upon filing and service of a divorce proceeding, both spouses are restrained from certain conduct by the Standard Family Law Restraining Orders. Such conduct includes, but is not limited to, prohibiting both parties from removing a child to another state; restraining both parties from transferring, encumbering or concealing community property; and prohibiting either party from creating or modifying a trust affecting the disposition of property without the written consent of the other party.

However, a spouse can perform various acts which are not prohibited by the Standard Family Law Restraining Orders discussed above. These acts need to be considered irrespective the spouse’s age and health.

Permitted Actions

Upon filing for a divorce, a spouse can change his or her Will without notice, spousal consent or court approval.  Further, a spouse may create a new Will disposing of his or her estate upon death and nominate new executors and successor guardians for the minor children should both parents pass away before the children reach legal adult age.

Either spouse is permitted to create or change their Durable Power of Attorney and Advance Health Care Directive without notice, spousal consent or court approval. These documents grant the spouse’s agent the power to make financial or medical decisions on behalf of the spouse if he or she becomes incapacitated. Hypothetically, if Mr. Odom, upon filing for divorce, had created or modified an Advance Health Care Directive to nominate someone other than Ms. Kardashian as his agent, Ms. Kardashian would not have been able to make medical decisions on his behalf, even though they are technically still married.  However, Mr. Odom’s lack of an Advanced Health Care Directive naming someone other than his spouse as agent gave Ms. Kardashian  the legal right to make these decisions.

Think Ahead

It is never easy to think about those dire circumstances in life which remind us of our own mortality. However it is imperative that people on the brink of, or in the midst of, a divorce proceeding think ahead and protect themselves in the event of an emergency.

Life is unpredictable, and the last thing many people who are going through a divorce want is to have their soon-to-be ex-spouse make important medical decisions – including end-of-life decisions – on their behalf.  To avoid this dilemma, work with your family law attorney to create or change a Durable Power of Attorney and Advance Health Care Directive so that they reflect your current wishes.

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