Incapacity Planning for Unmarried Couples

If you are in a relationship and are not married, whether of the same or opposite genders, you do not have many of the same legal rights as couples who are legally married.  A recent U.S. Supreme Court decision has made some changes for same-sex partners, at least in the states that recognize same-sex marriage.  But for unmarried couples of opposite genders, many of these changes will not apply, especially for incapacity planning.

When you die without giving the state any direction about how to distribute your assets, your estate will typically go to your relatives in the order that state law directs.  But even with a will, your directions may be challenged if you leave your estate to your partner and someone who would stand to inherit as one of your heirs contests your will.

But the legal issues between unmarried partners and relatives can begin long before you actually die and your estate goes to the probate court.  In fact, many legal issues can arise when you have even a brief illness and your relatives and your partner or significant other disagree over your treatment.  Having the right documents prepared in advance for incapacity planning can alleviate some of these legal and emotional issues.

If you become ill and are unable to make decisions for yourself, the legal system considers you to be incapacitated.  If you have not designated someone to make those decisions for you, the court will appoint someone.  In many cases, the court will first look to your relatives as an option.  A spouse would often be a first choice.  But if you are in a relationship and not married, the court may not find your partner to be the best choice.  That means that, depending on his or her relationship with your relatives, your partner may have no say in your care, or even the right to visit you.

In fact, unless you have signed a HIPAA release giving your partner access to your healthcare information, your family could even deny access to information about your condition or prognosis.  HIPAA is a law that was passed to provide privacy for medical information.  Without written consent, your doctors cannot legally provide this information to anyone.  A HIPAA release is an important part of your incapacity planning.

If you want to designate someone to make decisions for you when you are permanently or even temporarily incapacitated, you will need a Durable Power of Attorney for Health Care.  If your doctor decides that you are no longer able to make or communicate your health care decisions, the person named in your health care power of attorney will have the right to make those decisions.

While the power of attorney goes into effect when you are temporarily or permanently disabled or incapacitated, a living will allows someone to make life or death decisions for you.  If you have an incurable, terminal or irreversible condition that will cause you to die within a relatively short time, or if you are determined to be permanently unconscious, and your doctor has determined that you cannot make your own decisions about medical treatment, your Living Will provides directions about who makes those decisions.

If you are part of an unmarried couple, you should ensure that your partner has the legal right to make these decisions on your behalf.  The only legal way to do this is to have him or her named as that person in these incapacity planning documents.  An experienced estate planning attorney can make sure that these documents are properly drafted to give your partner control over these important decisions.