The law assumes that your spouse is the best person to make decisions for you, if you can’t make them yourself. Separating from your spouse does NOT override this presumption. Even obtaining a DVPO (Domestic Violence Protection Order) against your spouse doesn’t change this! Only a final divorce decree ends this preference. So, even if you and your ex have separated, you need to take steps to prevent him or her making decisions for you until you can divorce.
If you do not have estate planning documents, the law has to guess about who you would want to make decisions for you. If something happens to you, someone will need to obtain a guardianship over you to pay your bills and take care of your other financial affairs. A guardianship is expensive and time-consuming. Even worse, separation does NOT prevent your spouse applying to be your guardian. Without a plan in place, a court could appoint your ex, as your closest relative, to manage your financial affairs for you. The good news: the solution is simple. Executing a Durable Power of Attorney before you experience any problems eliminates the need for a guardianship proceeding.
Further, there is a list of individuals that doctors turn to for medical decision-making, if a patient cannot make his own decisions. Your spouse is the first family member on that list, whether you are on good terms or not. But, if you execute a Health Care Power of Attorney, the agent that you name ranks above your ex. Creating a HCPOA gives you peace of mind that your ex will not end up making important medical decisions for you.
If you and your former spouse executed estate planning documents in the past, these are still valid. A DVPO or separation does not change this! Until you revoke these and execute new documents, your ex will still have all the powers you gave him or her. If you signed a Power of Attorney, he or she will still have authority to take control of your financial affairs. And if you executed a Health Care Power of Attorney, your ex may still get to make medical decisions for you. If you don’t want your ex to have these powers, you need to revoke these documents and execute new ones ASAP.