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

If a cohabiting couple isn’t married, then one partner cannot take medical and financial decision on behalf of the other in case of an emergency. This right is available only to spouses in a legal marriage. If you are unmarried and in a cohabiting relationship, you should have the following two documents:

• Medical Directive
• Durable Power of Attorney

In the absence of these two documents, your unmarried partner cannot take any decision on your behalf. Only your family members will have the right to do so.

Medical Directives

Medical directives are regulated by state law. While the exact rules vary from state to state, medical directives allow the person to name someone who can take decisions on medical care of the person in case he or she falls ill or becomes incompetent. For unmarried couples living together, these documents are very important. Generally family members and spouses have the legal right to take such decision even if there is no medical directive but unmarried partners do not have such rights in the absence of medical directives. Some states grant such rights to unmarried partners but they rank low in priority.

The Healthcare Declaration

The healthcare declaration ensures that your medical wishes are honored. A medical directive with a healthcare declaration permits competent adults, if they wish to make prearrangements for the health care to be given them in the future. One rationale for the advance directive is that if adults with decision-making capacity can personally accept or refuse medical or surgical treatment, there should be no legal or other reason why they should not be able to accept or refuse it through a directive or even through an agent in advance of the loss of such capacity. Another rationale is that we have the right to exercise and retain control over decisions about our health care. The advance directive furnishes a vehicle by which adults, with the ability to make choices and decisions concerning the provision, withholding, or withdrawing of medical treatment, give oral or written directions to physicians to control treatment in the future when decision-making capacity may be absent, or by which adults may designate someone to make treatment decisions for them if they do not have the capacity to make and communicate such decisions.

The Durable Power of Attorney for Healthcare

The durable power of attorney for health care constitutes a further mechanism for surrogate decision making. All states have durable power of attorney statutes. A durable power of attorney should be in writing, should state the relationship of the parties, and should be signed by an individual (the principal) and witnessed generally by two people, one of whom may not be the spouse or blood relative of the principal. It does not need to be notarized, although most forms contain space anyway for a notary public’s acknowledgment of the execution of the instrument.

A power of attorney permits a principal to designate a person as attorney in fact on whom is conferred full and general powers to act for the principal with respect to the principal’s real or personal property and business or private affairs.

In addition to these general powers, it should have been possible to use the durable power of attorney to authorize an attorney-in-fact to perform any act not specifically prohibited by statutes, including consenting to or refusing medical treatment

A durable power of attorney authorizes the attorney in fact to:
• Take medical decisions not included in your healthcare declaration
• Enforce you medical wishes by filing a lawsuit if necessary
• Select and appoint doctors and medical staff to oversee your treatment
• Access your medical records
• Exercise visitation rights

In some states, the durable power of attorney for healthcare and the healthcare declaration are combined into one document known as the advance health care directive.

Durable Power of Attorney for Finances

This document works just like your durable power of attorney for healthcare is similar to your durable power of attorney for healthcare. It allows you to designate someone who can take decisions affecting your finances if you are unable to do so because you are ill or incapacitated. You must have a durable power of attorney in place if you want your partner to take the decisions on your behalf. In the absence of this document, your family members will be allowed to take the decision. Your partner will have no say.

There are two types of durable power of attorney for finances. A durable power of attorney can be designated to have authority to act as a proxy only when the principal becomes incapacitated. This is known as a springing durable power of attorney. The other is called the immediate durable power of attorney. When you have a durable power of attorney for finances in place which nominates your partner to take decisions on your behalf just like a married spouse can. Below are some of the rights you can grant under a durable power of attorney:

• Payment of bills
• Payment of taxes
• Bank transactions
• Managing and Making investments
• Buying insurance
• Managing, buying and selling property
• Operating your business
• Collecting federal and state benefits on your behalf

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