What unwed couples need to know about Durable Power of Attorney

Guest post by Rachel Bishop

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 kin 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?

Comments on What unwed couples need to know about Durable Power of Attorney

  1. great advice – thanks!
    good information to have BEFORE you need it and not something most people think about in advance.

    • My partner just got into a major car crash. The ambulance driver was sure there was going to be at least one fatality. Thanks be to seatbelts and his leather jacket, my partner was fine. But all I could think about on the drive to the hospital was what would happen if decisions needed to be made and his parents tried to make the wrong ones? (And what would happen to me afterward, since I live with him and his parents.) This article is very timely for me. I’m off to write mine now.

  2. I’m not a U.S. reader, so this post isn’t necessarily useful to me, but I wanted to thank you for recognizing that and mentioning that it’s a post for U.S. readers. So many sites don’t do that and just assume everyone’s American.

    • Five years of getting yelled at by frustrated international readers has trained me well. 🙂

  3. Awesome post. My mother is a RN and she pushes for everyone to have this sort of thing sorted and filed.

  4. In case of emergency where incapacitation is not the immediate factor but where the other person is still under a lot of stress you can also look into having something on record at the health care facility you attend. My boyfriend has sever asthma and he signed a few documents to make it so that when we make a trip to the emergency room I can ask questions and receive information. It can be frustrating to sign these release of information forms during an emergency so I’ve always been glad his doctor brought it up. another good thing to check into if your significant other has any conditions or long term illnesses.

    • I think you might be talking, at least in part, about a HIPPA release form or authorization to release protected healthcare information. If anyone needs one, just search HIPPA release + your state.

  5. I love that you have useful, practical, would-not-have-thought-about-this-until-it’s-too-late infomration on this site. This would probably be good to post to offbeat home, too!

  6. We need a post on how to get spouses/partners to even TALK about squeemy issues like being in the hospital, end of life care, funeral arrangements, etc. Strangely, I’m an atheist and yet I’m the one that’s OK with discussing these things. I want my body to be donated to a local medical school (SCIENCE!!) if possible, and I need my next of kin to sign as witness to my wishes. On the other hand, he’s something of a believer, and he does not like to talk about this stuff at all. I’m taking baby steps to get him OK with my own wishes about donating my body (to SCIENCE!!). Also, he’s in law enforcement, and his department has a form everyone needs to fill out regarding their wishes in case they’re killed in the line of duty or otherwise die while still working for the department. So far, all I’ve gotten him to fill out is that I’m to receive his life insurance and retirement…but he’s dragging his feet as far as deciding whether or not to have a full police funeral, who gets handed a flag, what music to play, who gets specific possessions, etc.
    So yeah, this article is great (especially for couples who cannot yet get married legally), but what if our partners won’t even talk about it?

    • I work in organ/tissue donation, so this in my life work. Every state is a little bit different, so check into your state specific laws (Google your state name + OPO to find a good resource). For most states, if you have specified your wishes in a living will, the next-of-kin cannot legally go against it. Also, if you want to donate your body to science, many whole body donation programs require pre-registration, so you should be looking into those things now (call the medical school or whole body program directly and ask for details). Don’t leave your family in a frantic mess at the time of your death. It makes everything so much easier when everything is already pre-arranged, even if the next-of-kin doesn’t agree. As long as the legal paperwork is filled out, the family usually wants to follow through with the wishes of the deceased as a final act they can all do together to honor their loved one.

  7. I’m an attorney who has this conversation at least once a week with my clients. Many states have great (though very basic) forms for a combined Health Care Directive and Durable Medical Power of Attorney available online and many, like my home state of Missouri, have great, simple instructions that go along with them.

    The problem with executing these documents isn’t time, cost, or complexity for most people, though; it’s making sure the documents can even be found in case of an emergency.

    Under *no circumstances* should you have only one copy of these documents available to the people who will need it. Remember, you’re not going to be able to tell someone where to go find the, or where the key to your safe deposit box is when you need them. While a safe or bank box may be ideal for the originals, copies need to be readily accessible. The best place for documents someone needs to get to in an emergency is in their hands, in physical and digital format.

    I also generally recommend keeping a copy in the glove box of your car for people under 60, since they’re much more likely to have a major accident or health event in or around their vehicle.

    For everyone, I recommend keeping copies of those important emergency documents in a large sealable bag in your kitchen’s freezer. It may sound strange, but it’s not going to flood and is nearly as good as a fireproof safe in an earthquake or house fire. The best part is that nobody needs a combination or key for the freezer, they just need to know that’s where you keep your emergency documents.

    • Yes, THIS! Your freezer is a standard place to keep Advance Directives, and Paramedics will look for them there. Some people even have stickers on their fridge saying “DNR inside”. Also keep copies in your wallet or bike helmet, should anything happen to you while you’re out and about.

    • Is the freezer thing maybe regional? My boy is in law enforcement and he had never heard of it. We keep all our documents in the gun safe, but you need a passcode to get into it… Hrmmm.

      • I’ve been taught it in California and Illinois – maybe more of an EMS thing than a LE thing?

  8. I think it’s smart, too, to discuss these decisions with family. If you’ve signed over these rights to someone other than the people who expect to get to make these decisions, let them know this BEFORE there’s an emergency. Emotions run high during and emergency–don’t let family drama add unnecessary stress.

  9. Thank you for this post! I did this last year so that my long-time partner would be recognized as the decision-maker by both my family AND any doctors/medical professionals. And everyone was given a signed copy (it took a lot of signatures including two witnesses, my partner, both parents, and myself, but it was worth the effort just for the peace of mind).

  10. I love this article so much. You have inspired me to actually make a health care power of attorney and living will instead of just talk about it. I am buying some software today to make this happen. Thanks!

    • Would also recommend a quick google search for the document name and your state. I found that my state publishes the forms online for free.

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