if my mother and father are legally married but separated, do they still remain legally obligated to each other?

1 answer | Last updated: Oct 13, 2016
A fellow caregiver asked...

If my mother and father are legally married but separated and either one becomes incapacitated and unable to handle her or his affairs, for instance my mother is in an accident and has become incapacitated. does my father have the legal right to assign me to be my mother's power of attorney to withstand court proceedings such as guardianship or conservatory, etc?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

These possibilities do not depend on your parents' marital status.

In a power of attorney, one person names another person as his or her agent"”usually to act if he or she becomes unable to makes decisions alone. No one has the right to make the appointment for another person. So, for example, your mother would always have the right to appoint her own agent; your father could never do it for her, whether they were married, divorced or separated.

There are no automatic appointments in a legal guardianship or conservatorship, either. In these proceedings, someone petitions a court"”usually the local probate court"”to appoint a person to make decisions for an incapacitated person. A judge then makes the appointment based on the person's best interests; if a qualified family member is able and willing to do the job, that person will usually prevail. For more on this, see Caring.com's articles and explanations at www.caring.com/adult-guardianship.

And since you seem concerned about potential complications with your parents' wishes, it might be an ideal time for you to share this information with them"”and encourage them both to get their wishes documented by finalizing their own powers of attorney and other estate planning documents.