Not legally sperated, husband injured, incompetenc


Generally when you separate and execute a separation agreement, the agreement itself has you waive all marital rights and obligations. This would include the right to make health-care decisions for your spouse, however you may have voided the separation agreement when you reconciled. If that was the case you may have the right to make decisions as his spouse, however in order to answer that question I would need to review your separation agreement.

You are also asking question regarding health-care law. This ventures into an area of law where we do not practice. You are legally his spouse until the date you are granted an absolute divorce. There is no “legal separation” status in this state, you are legally separated on the date you begin to live separate and apart. You are going to need to consult an attorney who specializes in health-care law to find out how your separation affects your ability to make medical decisions.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


My husband and I seperated appx 3 years ago after a 25 year marriage, but we never did so “legally” in that there was a seperation agreement drawn up, filed, recorded, etc. We have; however, attemtpted reconciliation numerous times within those 3 years. Our most recent attempt was in Oct of 2007. It didn’t work and we agreed to divorce, but never started the proceedings.

On 12/13 he was critically injured in an accident which resulted in him sustaining severe traumatic brain injury.

He has been rendered imcompetent by his physicians.

I have filed a petition for guardianship as he needs protection medically and financially, and I am waiting on an adjudication of incompetence hearing.

I am making all of his medical decisions as his wife, but am being fought by his adult siblings at every hand.

They say because we are separated and living in separate homes that I have no rights. As his legal spouse,am I legally next of kin and what is the order for next of kin?