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?

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

  1. This article is so important! I worked as a healthcare counselor for terminally ill patients and we used Aging with Dignity’s Five Wishes to help people have this discussion–I may or may not have borrowed a copy to use at home with my life partner… Although we both discovered that we may need someone else to (I wish there was a more delicate way to say this) “pull the plug” as neither of us thinks they could do it, even knowing that that would be what we would want. We had to talk to our families to make sure that everyone is on the same page.

  2. There are other documents if you want your partner to have access to your otherwise confidential medical records. Sometimes it is called a HIPPA release, sometimes a HIPPA disclosure authorization form, sometimes an authorization to disclose protected health care information. Just google one of those plus your state and you should be able to find an example.

    As a law student/legal intern focused on elder law, estates and end of life planning thank you for promoting these documents. In my short career I’ve already had clients in the hospital who want these documents and are not able to physically sign them or on the verge of losing the capacity needed to have these documents be valid. Do it now, before you need them!

  3. My partner and I did this last year, after hearing a horror story from the lady who works at our favorite gas station. She and her old man were unmarried but had been together for 20 years under the impression that they were considered common law. (There is no common law marriage in this state.) He got hit by a car one night while walking home and was in a lingering coma. His adult daughter, who hated the girlfriend, not only wouldn’t let her make any decisions for him, she would not even allow her in the hospital room. AND once he died, she kicked the gf out of the home they had shared for 20 years (but which was only in his name.) Because they were unmarried, the girlfriend had no legal right to anything, including many shared possessions. A sad story that taught us a lesson about healthcare POA AND about having explicit wills/documents to protect unmarried partners in the event of shared property. The whole kit and caboodle of forms was available to download free online, and the lawyer’s visit to have them notarized cost 25 bucks. Worth it. You don’t ever want to think about losing someone you love, but at the same time you have to protect yourself so as not to compound that tragedy with the stress of losing your home, etc.

  4. This is something I’ve been wanting to do for a while, but haven’t yet. It’s supper easy here too. (California). From my research, any letter or form with the required info will do if properly witnessed or notarized and there is a sample form on the health department’s website. (obvs not legal advice, just sharing knowledge).

  5. Insurance guru chiming in: make sure to add them as an authorized person to your health insurance too,
    ***even if you are legally married***.
    It requires no legal assistance just a signed form. Otherwise you are in for a pre-authorization nightmare.

  6. Thankfully it seems most Australian states are little more sensible when it comes to ‘de facto’ relationships, but not fiancees. If you happen to be both then it’s fine, but if you had a long engagement here and weren’t living together then it would be worth checking out. Yeah, I googled it. I’m bored.

  7. As a person who has worked in the funeral business in California for many years I must say, GET A DURABLE POWER OF ATTORNEY FOR HEALTH CARE ASAP!!!! Too many times I see families struggling over what the person wants or fighting over who can legally take care of things. Too many times the long lost cousin gets to be in charge instead of the non-married significant other of 10 years or the family fights with the same-sex partner because there are no legal documents. The forms are easy to fill out and please get them notorized. Protect yourself, your interests and your loved ones.

  8. FH and I were just discussing this! Great advice on how to protect ourselves and make sure we both get our wishes followed. Number one being that we want to be together if tragedy strikes.

  9. Amazing article and great advice! I printed it out and will fill it out tonight with my fiancee. With 7 children between us and countless family members, he’s the one that knows me best. I want HIM to be the decision maker!

  10. speaking as a funeral director: such great advice! it breaks my heart to deal with situations like this because we have to rely on the law and not on our hearts. will be passing this one around!

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