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 couples, unlike their married counterparts, often aren’t permitted to handle medical or financial decisions for each other without signed authorization.
There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner. These are called health care directives and durable powers of attorney for finances. Without these documents, your partner may face substantial obstacles to acting for you in the event of a medical emergency or handling a simple financial transaction on your behalf. 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 may well make decisions contrary to what you want.
Every state has laws authorizing individuals to create simple documents setting out their wishes about the type of medical treatment they do (or do not) want to receive if they are unable to communicate their preferences. These documents may also name someone to make medical decisions on the signer’s behalf. These documents are particularly important for unmarried partners. If you don’t take the time to prepare them 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.
Registered domestic or civil union partners are always given priority as surrogate decision makers. And a few states that don’t offer registration make room for unmarried partners on their list of potential decision makers, though they are not always given priority. No matter what state you live in, you can save your partner a great deal of time and trouble by planning ahead.
There are two documents that permit you to set out your health care wishes, both grouped under the broad label “health care directives.” First, you need a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your statement 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.
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.
A durable power of attorney for finances allows you to name someone you trust (called your “attorney-in-fact” or “agent”) to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document.
As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you can’t. If you don’t prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called “conservatorship proceedings,” can be time-consuming and expensive—and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.
You can make your financial power of attorney effective immediately or you can specify that it should go into effect only if you become incapacitated; the latter is called a “springing” power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.
When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish--from using your assets to pay your bills and everyday expenses to operating your small business.
There are a number of ways to find the proper health care and power of attorney forms for your state. You don’t usually need to consult a lawyer to obtain or prepare them. Here are some good sources for forms and instructions:
Quicken WillMaker & Trust (Nolo) is software that allows you to prepare a health care directive and a durable power of attorney for finances. It also lets you make a will, living trust, and many other useful legal documents.
Caring Connections offers health care forms for every state. You can download forms for free at their website or order them for a small fee by phone: 800-658-8898.
You may also be able to obtain health care forms from local senior centers, hospitals, your regular physician, or your state’s medical association.
For more information on health care directives and durable powers of attorney, see the Estate Planning section of the Nolo website.