Mary Johnston: Unmarried Partners, Medical Directives and the Durable Power of Attorney for Finances

Unmarried couples, including many domestic partnerships, aren’t typically allowed to make emergency medical and financial decisions for each other. If you ever become seriously injured or are otherwise unable to make these decisions and you want to make sure your partner has a say, then you need to create at least two things:

A medical/healthcare directive (which consists of a health care declaration and a durable power of attorney), and
A durable power of attorney for finances.

If you do not create these documents to empower your partner, these decisions will largely be made by your biological relatives who may or may not respect the input of your partner.

Medical Directives Generally

Each state has its own laws governing the creation of medical directives, but all such directives allow you to name someone to direct your medical care if you become incapacitated. Medical directives are particularly important for unmarried couples because, although most states list biological family members and spouses as potential decision makers, they do not generally list unmarried partners. Even if a state does list unmarried partners as potential decision makers, they are given lower priority than married spouses and biological family members. Finally, even if your state does recognize unmarried partners, if you are injured in another state, that state may not recognize your partner’s rights.

Medical Directives The Healthcare Declaration

The first document you need to create to ensure that your medical wishes are honored is the healthcare declaration. This written document sets out how you should be cared for in an emergency or if you are otherwise incapacitated. Your healthcare declaration will set forth your wishes on topics such as resuscitation, desired quality of life and end of life treatments including treatments you don’t want to receive. This document is primarily between you and your doctor, and it advises them how to approach your treatment.

Medical Directives The Durable Power of Attorney for Healthcare

The durable power of attorney for healthcare is given to the person you want to make medical decisions for you in an emergency. Even though you set out your wishes in your healthcare declaration, such documents can never cover every circumstance, and the person who has a durable power of attorney for healthcare is the person who makes decisions not covered by your healthcare directive. Keep in mind that the person with a durable power of attorney for healthcare can never contradict the terms of your healthcare declaration.

Depending on your state, the person you grant a durable power of attorney for healthcare will typically be called your “agent,” “proxy,” or “attorney-in-fact”. The typical rights for this person include:

Providing medical decisions that aren’t covered in your healthcare declaration
Enforcing your healthcare wishes in court if necessary
Hiring and firing doctors and medical workers seeing to your treatment
Having access to medical records
Having visitation rights

Finally, note that in some states they combine the healthcare declaration and the durable power of attorney for healthcare into one document called an “advance health care directive”.

Durable Power of Attorney for Finances

The durable power of attorney for finances works similarly to the durable power of attorney for healthcare, in that it allows whomever you designate the ability to make decisions in that area. The person you appoint with a durable power of attorney for finances will have the ability to make financial decisions for you if you are incapacitated.

Just like in healthcare, if you want your partner to have a say, you have to put it in writing. Most states will only recognize biological relatives and married spouses. If you do not expressly grant your partner a durable power of attorney for finances, he or she will have no legal say in your financial matters.

It is also worth noting that there are two basic forms of durable power of attorney for finances, usually referred to as “springing” or “immediate”. A springing durable power of attorney for finances would become effective once you were incapacitated, but not before. A springing durable power of attorney for finances makes sense in many situations, but for unmarried couples it may not. If you make the durable power of attorney for finances immediate, then your partner can make financial decisions for you during your life just like a married spouse can.

Finally, here are some of the rights and responsibilities that whomever you grant a durable power of attorney for finances will have to make:

Paying your bills
Paying your taxes
Conducting your bank transactions
Managing and investing your money
Purchasing insurance for you
Buying, selling and managing any of your property
Operating your business

Collecting your government benefits and inheritance.

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