The Oates Journal (ISSN: 1098-1446) is a publication of the Wayne E. Oates Institute addressing issues related to spirituality, ethics, and healing from the perspective of pastoral care and counseling.

The numbers 6, 12, 18, 23, and 32 might seem like the winning lottery numbers, but they represent the number of years that recent patients to whom I have ministered have been separated—but NOT divorced. The state of Texas does not have a provision for legal separation. Therefore, the rights and responsibilities of marriage may remain intact, even if the couple has been living independently for years. Living separately while still married may have its short term benefits for allowing marital stress an opportunity to subside and for the couple to evaluate whether the marital relationship is sustainable. However, when separations to stretch into years and even decades, the prolonged separation can affect health care decision making.

Hospital chaplains are often asked by the physician, patient or family to guide the family through the maze of long-term care planning. Unfortunately, estrangement creates emotional and legal issues that can complicate an already stressful situation. Fortunately, this can be addressed through pastoral conversations regarding the Medical Power of Attorney. [Ed. note: each state has different rules about the power of attorney, but a quick check on your state's web site will reveal the specifics for your state, province, or country.]

First, as long as one is legally married to his or her spouse, that spouse has certain responsibilities when it comes to health care decision making. As long as an individual is competent, the individual and his or her doctor will make health care decisions together. When a physician declares in writing that an individual is incapacitated and not able to make his or her own decisions, they begin to look to the patient’s surrogate decision makers for guidance in health care decisions (Texas Health and Safety Code Chapter 166). This means that the spouse you have been separated from and who has no interest in your life may suddenly have the authority to provide consent to treatment, refuse offered medical care, or even make decisions about placing you on life support, inserting feeding tubes or withholding or withdrawing life-sustaining medical treatment. Most of the people whom I have visited were shocked and even horrified to think that that person they no longer lived with maintained such authority.

“Shocked and horrified” were the exact words used by a cancer patient when she learned that her estranged spouse maintained the authority to make health care decisions on her behalf if she became unable to communicate her own decisions. “We have not seen each other in years. He has nothing to do with my life!” I explained to her that state law still made him her primary surrogate decision maker, even though their marriage remained only a legal reality. She suddenly had an urgent need to make sure that he was NOT her surrogate. After discussing the matter with her father and brother, she was able to complete a Medical Power of Attorney that placed authority in those she trusted. A sensitive pastoral conversation regarding a Medical Power of Attorney helped this woman experience a greater sense of peace as she faced an uncertain future.

The Medical Power of Attorney is a powerful document that allows a patient to appoint someone to be a healthcare decision maker, protecting the patient’ s autonomy against a future time when he or she may  become unable to communicate his or her own wishes. Under Texas law (for example), one may appoint a primary surrogate decision maker and up to two alternates.  The protection of the Medical Power of Attorney is that people whom the patient trusts and who understand the patient’s wishes and values are legally empowered to make health care decisions if the patient becomes incapacitated. The designated surrogates are required to be messengers and to make decisions in accordance with the patient’s wishes. If one chooses to be separated and not divorced, it is good pastoral care to help such individuals understand both the issues that may arise and the remedy that is available through completing a Medical Power of Attorney.

Many patients are unaware that the authority of the estranged spouse goes even further. For example, in Texas, state law requires the consent of the legal next kin for to release a deceased patient to the funeral home. This is made very clear in the Texas state law (Health and Safety Code Chapter 711).

Bill and Sue have been separated for years but they never obtained a divorce. If Bill dies in a hospital, this means that before chaplains can release Bill’s body to the funeral home they must do a thorough search for Sue, even if it takes days or weeks to find her. Chaplains and social workers must make a good faith effort to locate Sue as the legal next of kin while Bill's body is kept in the hospital morgue. One extreme example of this was reported by my local evening news on December 19, 2012. A man who left his wife 40 years ago and never sought a divorce still remains unburied in a Dallas funeral home, because his estranged spouse refuses to provide permission for his burial or cremation [ed: KDFW Fox 4 News for Dallas Ft. Worth, article no longer available]. 

State law may also require the consent of the legal next of kin for an autopsy if that procedure is requested by a physician or by the family (Texas Code of Criminal Procedure.49.32–33). This means that Sue would have authority to provide consent or refuse consent for an autopsy on Bill, even if the doctor or family believed one was necessary. In my experience as a hospital chaplain, I once had to contact a spouse who had been separated but not divorced for more than three decades. She was the only one who could authorize the physician's autopsy request and subsequent release to a funeral home. Her vocal distress over this situation revealed many years of unresolved pain.

It is good pastoral care to help a patient understand that the authority of one’s designated surrogate ends at death. Even though the Medical Power of Attorney prevents the estranged spouse from assuming authority for health-care decision making, the spouse still maintains authority to designate a funeral home and determine the disposition of the body. If one chooses to remain married to an estranged spouse, one would do well to have pre-planned funeral arrangements and to designate in writing his or her final wishes regarding disposition. For Texas, Chapter 711.002 of the Texas Health and Safety Codes provides the legal format in a document entitled, “Appointment of Agent to Control Disposition of Remains.”

Counseling a patient who wishes to donate their organs or to will his or her body to medical science is also good pastoral care. If a patient wishes to donate organs or will his or her body to medical science, forms are available to allow the legal expression of that desire. Apart from these formal declarations, however, health care providers still must look to the estranged spouse for a funeral home release, autopsy consent, or consent for organ tissue donation. These may be different in each state, but they care usually just a short search away by computer.

Divorce may not be ideal, but remaining married while separated allows an estranged spouse to maintain certain authority over his or her ex-partner that they both may find totally unacceptable. The pastoral care of persons in this situation requires chaplains to be knowledgeable and guide patients through the surprising and painful aspects of being separated but not divorced.

Author

Chaplain Jerry L. Carter is a 23 year employee of the Baylor Health Care System based in Dallas, Texas. He holds a BA from Dallas Baptist University and an M.Div. from Southwestern Baptist Theological Seminary. Chaplain Carter is an ordained Southern Baptist Minister with his denominational endorsement by the Baptist General Convention of Texas; Board Certified by the Association of Professional Chaplains, and serves as staff chaplain at Baylor Medical Center in Waxahachie, Texas. 

This article is part of a series of articles by chaplains and other staff of the Baylor Healthcare Systems.These articles do not reflect the viewpoint of the organization or its affiliates, but are solely the resposiblity of the authors.

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