Estate Planning for Unmarried Couples, Part 3

So, if you’re wanting to allow someone who you are not married to access to make decisions for  you and to run your life if you are unable to do so, what are the options?

Basically, there’s three documents you may want to consider.

First, a durable power of attorney. A power of attorney will allow someone else to deal with your business affairs; deal with banks, lawyers, accountants, sign contracts in your name, file tax returns and otherwise do what you could do with respect to business, with a few exceptions.

Second, a health care surrogacy, sometimes called a health care power of attorney or health care proxy.  This would allow the other person to deal with physicians, hospitals, medical insurers, and to make medical decisions for you if you were unable to make those medical decisions yourself.

Third, a pre need guardian designation.  If you were ever unable to care for yourself, it is possible that an incapacity and guardianship application could be filed; where a judge would decide whether  you were competent to look after  yourself, and if you were not, the judge would appoint a guardian, or someone to make decisions on your behalf. A pre need guardian designation is where you make a decision ahead of time and say to the judge, if I am unable to handle my own affairs, I want this person to be my guardian.

The reason all of these are particularly important for unmarried couples is precisely because you are not married to them; the law grants married couples the ability to make decisions for each other under some circumstances, and allows other to share information with spouses under some circumstance. Most medical providers will share information with spouses, and may very well look to the spouse to make medical decisions if the other one is unable to do so. Likewise, the law presumes that a spouse is entitled to be guardian of the other spouse. But if you are not married, the law does not presume this and the other partner may very well find themselves frozen out of the decision making process unless they have documentation in place allowing them to do this sort of thing.


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