Can a Power of Attorney Be Changed if a Couple Is Not Divorced Yet?

by Beverly Bird

Giving power of attorney to someone who cares more about her own interests than yours has some scary implications. Although there are different kinds of POAs, and some grant more extensive powers than others, when you create a power of attorney and name your spouse as your agent, you typically give her the right to transact a great deal of personal business on your behalf. There's no legal requirement that you must name your spouse as your agent. If you have, however, you may want to change your POA if you're planning to divorce.

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Risks

Some POAs limit your agent's powers and some don't go into effect unless and until you're incapacitated. However, not all POAs have these restrictions. If yours doesn't, and if you don't revoke your spouse's powers under your POA, she will have access to all your personal records. She can use the POA to transfer assets out of your name or drain your bank accounts. She can hunt for hidden assets if she believes they exist. If you gave your spouse a medical power of attorney to make health care decisions on your behalf if you become incapacitated, you're effectively trusting someone you no longer want to be married to with your life.

Revoking Your Power of Attorney

Changing your power of attorney is typically a matter of revoking it and creating a new one. When you create a new power of attorney naming a new agent, it can include language that its existence revokes any POAs that you made before. You can do this while you're happily married, unhappily married or after you've separated and your divorce is pending.

Other Precautions

As an added precaution, you can distribute copies of your new power of attorney to all financial entities or businesses you once authorized your spouse to deal with on your behalf. If these businesses have copies of your old POA, you can take it back so there's no confusion if and when an employee finds two POAs in your file.

Legal Recourse

When you're officially divorced, this typically severs your spouse's right to act as your agent, even if you haven't yet revoked and replaced your old POA. The state of Virginia takes this one step further, for example – your spouse's powers terminate as soon as any legal proceeding is filed with the court that indicates the marriage is ending. You can check with an attorney to find out what the rules are in your state. However, if you don't change your POA and your state doesn't terminate your spouse's powers when one of you files to end the marriage, some states may sort things out for you as part of the divorce process if she abuses her powers to move money or assets out of your possession.