What unwed couples need to know about Durable Power of Attorney

Guestpost by Rachel Bishop on Jun. 27th

We're not lawyers, but here's some common sense advice for our U.S. readers on what you need to know about the legal issues for unmarried partners dealing with medical decisions.

EMERGENCY © by Chris.Violette, used under Creative Commons license.

Imagine: You're in a long engagement with the love of your life. Then the worst happens. Your beloved is in a horrible car accident, hanging on by a thread. You rush to the hospital to be by their side and oversee their care. When you get to the hospital, you are told that you can't make those decisions — only the next of kin can. But who is next of kind in this case?

Legally, next of kin is tied to legal and biological relationships and is a ladder based on proximity to the patient. It starts with legal spouses and then it goes to parents, adult children, grandparents, etc. When there is no spouse, parents are considered the next of kin. In the case above, there is no legal recognition of an engagement and next of kin would be the closest living relative. While the hospital can take the fiancé's opinion in account, legally it has to get permission from the next of kin.

What if the next of kin doesn't know the wishes of the patient? What if the fiancé does? Is there any work around? Luckily, yes there is.

It's called Durable Power of Attorney for Health Care (DPAHC). Essentially, it is a document that declares a specific person to be the decision maker in cases of incapacitation. It can be anyone — neighbor, friend, coworker, fiancé, as long as they are made aware of the patient's wishes. If you're in a long engagement, such a document would ensure that you and your partner get to makes the decisions for each other in case of an emergency. It's also a great tool for those who cannot legally get married, or whose marriage is not recognized in all states. If a homosexual couple married legally in one state and moved to or visited a state that does not allow such marriages, hospitals in said state could notify and get decisions from other legal next of kin, instead of the spouse.

Here's a sample form, created by the Washington State Medical Association. The form usually varies by state, but this is a good example that's easy to follow and understand. Washington State doesn't require a notary to sign it, but some states do. (This link provides more info for the individual states.) The important thing is to research your state's laws. Also, it varies tremendously from country to country.

When the worst happens, it's natural to seek control of the situation. When a loved one is injured and in need of emergency care, we all want to be able to choose what's best for them. In cases where a legal relationship does not exist, a Durable Power of Attorney for Health Care can allow those closest to a patient to make the important calls, even if they are not the legal next of kin. If you're interested in getting one, contact your state Department of Health. Each state has different rules and regulations surrounding the applicable forms. Depending on the state, you may need a lawyer or a notary.

Not concerned about who will make decisions for you, just that they make the right decision? In this case, you need a living will, also known as an advanced health care directive. (Here's an overview of living wills, written by a lawyer.) This can be any document — no form or lawyer needed. Just a sheet of paper (or more, if you want to get specific) dictating how you want to be treated should you be incapable of making your own decisions, then signed and dated.

You can be as vague or detailed as you want. It can be as simple as "I don't want to be kept alive by a machine." It could take some research and soul-searching. Do you want to be fed by a tube? Do you want your organs donated? If you want to be kept alive by a machine, is there a time limit? Check the internet for examples, and think about what would matter most to you.

Hopefully, you'll never need either of these documents or be in such a horrible situation. If you are though, hopefully you'll be prepared should the worst happen.

Have you explored Durable Power of Attorney policies in your area? What have you learned?

About Rachel Bishop

I am a third-year medical student, aiming to become a forensic pathologist after graduation. In my free time (ha! what free time?), I like to read, play video games, and just generally hang out with my amazing future hubby and our two cats. I am also addicted to sports, mainly football, NASCAR, and anything related to my alma mater, VCU.