Wills and Durable Power of Attorney for Health Care
Unmarried couples living together often wish to share property ownership and make crucial life decisions together. There are several methods to share property rights that are recognized by the law, including joint tenancies, cohabitation agreements or "living together" contracts, and wills. If couples want their life decisions to have legal validity, particularly decisions regarding medical treatment and finances, they should create what is known as the durable power of attorney.
A will is a legal document that details what an individual would like done with his or her property and assets after death. If you have property you wish your cohabitant to receive after your death, you need to describe the property in your will and indicate your wish. Otherwise, if you don’t have a will to detail your wishes, your property will pass according to what are called intestate succession laws.
In most states, intestate succession statutes automatically distribute your property to your closest family members, i.e. your spouse, children, parents, etc. Without a will, your cohabitant won’t receive any of your estate unless he or she is successful in arguing that you had a financial or property-sharing arrangement. Such claims are often difficult to prove, particularly with the lack of any formal documents. Drafting a will is generally the best way to ensure your property is passed to whom you wish.
However, if you and your cohabitant are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship instead of a will. Joint tenancies give the cohabitants the ability to share the rights and responsibilities associated with the property during their lifetimes. Then, upon the death of one joint tenant, title to the property automatically passes to the other, without the need to go through the formal probate process a will requires. There are other benefits to a joint tenancy, such as tax savings, documentation of commitment, and the sharing of debt.
Durable Powers of Attorney
When you create a "power of attorney," you have authorized another person to make decisions on your behalf, particularly decisions that may have a legal effect. If you want the person making decisions for you (let's say it is your unmarried partner) to be able to do so even if you become incapacitated and unable to make decisions for yourself, then you will have to make those legal powers "durable." If you don't explicitly make the power of attorney durable, they will end if you become incapacitated and your unmarried partner may have to go to court to ask the judge to continue managing your affairs.
There are generally two types of durable power of attorney, but this can vary depending upon the state you reside in. The first type, called the durable financial power of attorney, applies only to financial decisions. If you grant someone the durable financial power of attorney over your affairs, he or she will be able to manage your finances when you become unable, and must always act in your best interests.
For Health Care
Second, there is a durable power of attorney for health care. While state regulations vary, the durable power of attorney for health care, otherwise known as a "medical directive," allows you to name someone to direct your medical care if you become incapacitated. When creating a medical directive, you make what is called a health care declaration, or medical directive. The health care declaration sets out how you should be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want to receive and which you do not. Life-prolonging treatments like resuscitation are often addressed in a medical directive, as are directions regarding quality of life and end of life treatments.
Once you have granted a durable power of attorney for medical care, the person you nominated to make decisions on your behalf will be able to:
- Make medical decisions on your behalf, if you have not already made specific instructions regarding that decision in your medical directive
- Enforce your health care decisions in court, if necessary
- Hire and fire doctors and medical workers involved in your treatment
- Have access to your medical records
- Have visitation rights
If you would like your unmarried partner to manage your affairs should you become unable to manage them yourself, you should create both the durable power of attorney for health care and the durable financial power of attorney. If you have not completed these documents, financial and health care decision-making will typically pass to a member of your family when you become incapacitated. Consult with an estate planning attorney to learn more.