If you ever become unable to make your own health care decisions or manage your own finances -- because of injury, serious illness, or advanced age -- you probably want your partner to step in and take care of you. Unfortunately, unmarried partners, unlike their married counterparts, often aren't permitted to handle medical or financial decisions for each other without signed authorization. And even married couples benefit from having their wishes written down in clear legal documents.
There are a few documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: health care directives -- including a durable power of attorney for health care and a living will) and a durable power of attorney for finances.
Without these documents, your partner may face tremendous emotional and practical problems when trying to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you're not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won't consider your partner's input, and this relative may well make decisions that go against what you want.
Fortunately, the documents you need are straightforward and usually easy to complete. (To learn more about both medical and financial powers of attorney, see the Living Wills & Medical Powers of Attorneyand Financial Powers of Attorney areas of Nolo's website.)
Health Care (Medical) Directives
Every state has laws authorizing individuals to create simple documents (often called living wills or health care directives) setting out their wishes about the type of medical treatment they want -- or don't want -- if they become unable to communicate their own decisions. These documents may also include a durable power of attorney for health care with which you can name someone to make health care decisions on your behalf.
Health care directives are particularly important for unmarried partners, although married people should have them, too, to avoid conflict with other family members. If you don't take the time to prepare a health care directive and you become incapacitated, doctors will turn to a family member designated by state law to make medical decisions for you. Most states list spouses, adult children, and parents as top-priority decision makers, making no mention of unmarried partners.
A few states do include partners in their list of potential surrogate decision makers -- including Arizona, Delaware, Maine, and New Mexico. However, only New Mexico gives priority to a long-term partner. Other states make room for unmarried partners (sometimes classifying them as "close friends") only if listed family members are unavailable. Additionally, in the states where marriage, domestic partnership, or civil unions are available for same-sex couples, spouses or registered partners have priority over other family members. However, no matter what state you live in, you can save your partner a great deal of time and trouble by planning ahead.
Creating a Health Care Directive
There are two documents that permit you to set out your health care wishes, both grouped under the broad label "health care directives." (To learn how to make a health care power of attorney in your state, see Nolo's articles Create a Living Will and Health Care Power of Attorney in Your State.)
Health care declarations. First, you need a health care "declaration," a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.
Durable powers of attorney for health care. The second document is usually called a "durable power of attorney for health care." In this document you appoint the person you choose -- most likely your partner -- to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your "attorney-in-fact," "agent," or "proxy," depending on where you live) other rights to participate in your medical care, including:
- directing your health care under any circumstances that you don't specifically address in your declaration
- hiring and firing medical personnel
- visiting you in the hospital or other facility even when other visitors are restricted
- having access to medical records and other personal information, and
- getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.
Advance health care directives. In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an "advance health care directive."
Who Can Make Health Care Directives?
You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.
You may change or revoke your health care directives at any time as long as you are of sound mind.
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