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.

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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. 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.

  11. 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.

  12. 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!

  13. 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.

  14. 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).

  15. 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.

  16. 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.

  17. 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.

  18. 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.

  19. 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!

  20. 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!

  21. My partner and I just went through this when he was hospitalized a couple months ago. We knew that his mother would be considered his next of kin and would be the one who would get to make the decisions. So we asked to speak with the hospital social worker and went over all the options available to us (Best [see: most awkward] part of this: his mom was in the room when the social worker came in, so I had to basically kick her out of the room b/c we knew what her reaction would be–ex: When asked politely if my partner and I could have a few minutes alone with the social worker she said in a huff as she was stepping out, “Well, fine. What does it matter; I’m just the mother.” You can probably sense there is a reason he wants me to be empowered to make decisions for him should something happen….).

    Anyway, the entire hospital system now has electronic copies of the documents we signed, we both have copies, and when he was transferred to another hospital within the system for emergency surgery, I slept with my copy under my makeshift pillow in the hospital ward’s family lounge every night until he was discharged. I am so grateful I had someone to help me access the resources I needed to make sure my partner was taken care of the way *he* wanted to be cared for.

  22. My brother is in the hospital right now with liver failure and is very confused, having hallucinations and, not in good contition. He does not have a POA, nor does he have a MPOA. He’s a single Dad of two girls, which I have (Mother is out of the picture), and two grown children. The way it is right now our hands are tied. We can’t do anything!!! We live in Texas…is there anything we can do to make one of his older children his POA (ages 38 & 30)?

    Very Sad In Texas

  23. My fiancée and I have had many a conversation over this exact hypothetical! Its one of those things we discuss frequently but never actually get around to doing anything about it. We have been together for 12 years and have lived together for 10, and this is one of my biggest fears. That something will happen to one of us and neither can make a legal decision. We are lucky that we both have family that would honor our decisions, but we don’t live in the same states. This presents an issue of urgency if an on the spot decision has to be made. So, I think he and I will have some reading material to look over when he gets home thanks to this great article!

  24. Remember to keep the original in a safe deposit box, and both of you carry copies of each other’s POAs! Saying you’re the patient’s Power of Attorney and actually having the document to prove it are two very very different things.

  25. In the event of an emergency does the person on the Power of Attorney have to have the physical documents with them? Say you are traveling away from home and an emergency occurs, if the POA is already made is there a way my partner could represent me without the physical document?

  26. Does this letter document of not wanting to be kept in machines when I am in coma has to be stamped by a lawyer? or just my signature?

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