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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:

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

If you don't 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. This article covers the legal implications of unmarried partners, medical directives, and the durable power of attorney.

Medical Directives Generally

Each state has its own laws governing the creation of medical directives, which allow you to name someone to direct your medical care if you become incapacitated. Medical directives are particularly important for unmarried couples because 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

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, which includes treatments you don't want to receive. This document is primarily between you and your doctor, and it advises them on how to approach your treatment.

Unmarried Partners: Medical Directives and 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. 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 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; and
  • Having visitation rights.

Finally, note that some states combine the healthcare declaration and the durable power of attorney for healthcare into one document 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, in that it allows whomever you designate the ability to make 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 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 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, usually referred to as either "springing" or "immediate" powers of attorney. A springing durable power of attorney for finances would become effective at the point that 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, just like a married spouse could do.

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

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 their health care and finances, especially if their partner becomes seriously ill or incapacitated. Hopefully, that will never happen, but it's always better to be prepared.

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

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