Power of attorney documents are personal and individualized. It’s not a one-stop shop, necessarily. It depends on the wishes of the person who is granting the power. This person is called the “principal”. He/She is entrusting decisions to be made by the “agent”, who may also be called an attorney-in-fact. This is a highly delicate situation when it involves extremely sensitive and personal matters, such as divorce. Officially, an agent who holds a power of attorney could initiate a lawsuit for the principal; however, states look very unfavorable toward a petition for divorce in this manner.

Let’s understand what a power of attorney is meant to do first. As we said, the terms of a power of attorney is determined by the principal and can be extremely broad or very specific with limited authority to do certain things. Typically, the agent for a general power of attorney takes care of personal business, not life-changing decisions.

This means that if you were to become unable to take care of your personal business, you could have a power of attorney designated to purchase or sell property or possessions. They would have the authority to handle daily financial transactions, pay bills and act on your behalf in these types of decisions. However, again, this is determined by your wishes and what is specifically written in the document by you. Normally, you would need a “durable power of attorney” in effect for your agent to have the authority to make these decisions if you are incapacitated. The agent would then be legally authorized to continue to make decisions for you. In this case, your agent would become your conservator after a court determines you to be disabled. In the role of conservator, they may be able to file for divorce, but it would most likely require a court hearing.

A healthcare durable power of attorney or advanced directive is specifically designed to allow your agent to determine health care needs and decisions should you be unable to make your own decisions or become debilitated. This can range from treatment for diseases or conditions to long-term care to life support. Again, your wishes should be very specific in your document and completely understood by loved ones, especially in this case.

Individual state laws can vary, so you will need to check on your individual state. Tennessee, in particular, will allow your power of attorney to file for divorce, but only if the document states it explicitly and you are incapacitated.

Understand, granting someone a power of attorney does not mean you cannot take care of your own business while you are able to. If you are, it would be much more sensible to file and sign your own divorce papers. Changing or revoking the power of attorney from your spouse would also be a wise idea if you are considering a divorce, as they can be revoked at any time you see fit. Otherwise, that soon-to-be-ex-spouse would have the ability to possibly to make decisions in your name and probably doesn’t have your best interest at heart.