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

Unmarried couples, including many domestic partners, 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:

  1. A medical/healthcare directive (which consists of a healthcare declaration and a durable power of attorney); and
  2. A durable power of attorney for finances

If you don't create these documents to empower your partner, your biological relatives will largely make these decisions. They may or may not respect the input of your partner. In the world of healthcare decisions and legal issues, it's important to understand the role of these legal documents. Especially for unmarried partners, it's essential to have these documents to ensure others respect your wishes.

This article covers the legal implications of unmarried partners, medical directives, and the durable power of attorney.

Medical Directives Generally

medical directive is a document that outlines the types of medical treatment you wish to receive if you become unable to make your own healthcare decisions. This could be due to illness, injury, or any situation that leaves you incapacitated and in need of medical care. Different states have different state laws about these documents. A notary might need to make the documents official.

Medical directives are particularly important for unmarried couples. While 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 usually 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

One type of medical directive is a healthcare declaration, also known as a living will. This document details the type of life-sustaining treatment and life support you want if you're unable to communicate. This written statement 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
  • End-of-life treatments

This includes treatments you don't want to receive. This document is primarily between you and your doctor. It advises them on how to approach your treatment. This could include decisions about long-term care, such as staying in a nursing home. It could also include whether you want treatments like feeding tubes, ventilators, or resuscitation.

Unmarried Partners: Medical Directives and the Durable Power of Attorney for Healthcare

For unmarried partners, it's crucial to discuss and plan for healthcare decisions together. If one partner becomes unable to make decisions, the other may not have legal rights to make decisions for them unless there's a document called a 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. This gives one partner the authority to make healthcare decisions for the other.

Even though you set out your wishes in your healthcare declaration, such documents can never cover every circumstance. 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 a person with a durable power of attorney for healthcare can never contradict the terms of your healthcare declaration.

Depending on your state, the person that 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 for medical treatments that aren't covered in your healthcare declaration
  • Making decisions about health insurance and choosing healthcare providers
  • Enforcing your healthcare wishes in court if necessary
  • Hiring and firing the doctors and medical workers seeing to your treatment
  • Having access to medical records
  • Having visitation rights in a healthcare facility

Some states, like Georgia, combine the healthcare declaration and the durable power of attorney for healthcare into one document. This document is called an "advance healthcare directive."

Unmarried Partners and the Durable Power of Attorney for Finances

The durable power of attorney for finances works similarly to the durable power of attorney for healthcare. It allows whomever you designate the ability to make financial decisions on your behalf. With a durable power of attorney for finances, the person you designate will have the ability to make financial decisions for you if you're incapacitated.

Just as with healthcare, if you want your partner to have a say, you must put it in writing. Most states will only recognize biological relatives and married spouses. If you don't expressly grant your partner a durable power of attorney for finances, they will have no legal say in your financial matters.

It is also worth noting that there are two basic forms of a durable power of attorney for finances. These are usually called either "springing" or "immediate" powers of attorney. A springing durable power of attorney for finances would become effective when you become 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 at any point. This gives them the same rights as a married spouse.

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, including health insurance and Medicaid
  • Buying, selling, and managing any of your real estate property
  • Operating your business
  • Collecting your government benefits and inheritance

Essentially, this document gives your partner the ability to make financial decisions if you're unable to do so. You can also choose adult children, close friends, or conservatorship to handle these matters if you prefer.

More Questions About the Rights of Unmarried Partners? Contact an Attorney Today

With the diversity of relationship structures comes a variety of legal rights and obligations that can apply unevenly. For unmarried couples, the lack of certain marital rights could significantly impact them. This is especially true if their partner becomes seriously ill or incapacitated. Hopefully, that will never happen, but it's always better to be prepared.

The importance of these documents in estate planning cannot be overstated. A written statement can provide clear guidance and peace of mind for you and your partner. For unmarried partners, these documents are particularly important as they can help avoid potential misunderstandings. If you have more questions, contacting an attorney for professional legal advice is a good idea.

Take your first steps today by speaking with an experienced family law attorney near you.

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Can I Solve This on My Own or Do I Need an Attorney?

  • You may want to consider creating powers of attorney or prenup agreements
  • Getting an attorney’s advice is a good idea if there are children or substantial property involved
  • An attorney can help you responsibly enter and exit cohabitation

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Don't Forget About Estate Planning

Living with a partner is an ideal time to create or change your estate planning forms. Would you like to add your partner to your will? Also, consider creating a power of attorney so your partner can access your financial accounts and bills. A health care directive is necessary if you want your partner to make your medical decisions if you ever become incapacitated.

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