If you are estranged from your spouse and thinking about (or currently going through) a divorce, something that you might want to consider obtaining is an advance medical directive and power of attorney. 


Under Virginia law (Va. Code § 54.1-2986), if you are medically or mentally incapable of making informed decisions, the physician will look to the following individuals for directions on how to proceed, listed in order of priority:

  • Guardian for the patient
  • Patient’s spouse
  • Adult child of the patient
  • Adult sibling of the patient
  • Any other relative in the descending order of blood relationship
  • Any adult who has exhibited special care and concern for the patient and is familiar with the patient’s religious beliefs and basic values

When determining the proper person to consult, physicians must use an objective, not subjective, approach. This means that they will not take into consideration the mental stability of that person or the nature of the relationship. 

If you have an advanced medical directive, you can ensure that your desires and convictions are respected in the event you become incapacitated. Additionally, you can also appoint the person that you trust to make the best-informed decisions regarding your care. This is especially important if you are facing a divorce and are estranged from your spouse. If you do become incapacitated, it is highly likely that the physician will have to turn to your spouse for direction on serious life or death decisions. 



While your medical needs are something to consider when going through a divorce, so are your financial and real estate needs. If you become medically or mentally incapacitated, who will be in charge of your finances? In the absence of a power of attorney, this will likely fall on the same individuals listed above. However, for the same reasons, you may not want them to have to make those decisions or abuse their power. Therefore, it is also important to execute a power of attorney. 

The power of attorney designates the person(s) who will take control of your financial accounts and real estate if you become incapacitated. When deciding who your power of attorney will be, you will want to make take certain facts into consideration, such as your closeness with the person, whether you trust them, if they are financially responsible, and their geographic location. 



While an advanced medical directive and power of attorney will hopefully never have to be used, they are still vital documents to have in the event that something tragic does happen. It is much better to be prepared and have peace of mind that you will be taken care of if you are incapacitated. These are critical documents, and it is therefore best to consult an attorney to prepare them. They attorneys at Smith | Strong, PLC are here to discuss your options and prepare the appropriate documents that ensure you are cared for properly. 

H. Van Smith
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Trusted Virginia Attorney Serving Richmond to Williamsburg