Health Care Directives and Financial Powers of Attorney for Your Partner

To have the power to make medical and financial decisions for your partner, you must prepare the right legal documents.

If you ever become unable to make your own health care decisions or manage your own finances -- because of injury, serious illness, or advanced age -- you probably want your partner to step in and take care of you. Unfortunately, unmarried partners, unlike their married counterparts, often aren't permitted to handle medical or financial decisions for each other without signed authorization.

There are a few simple legal documents you should prepare if you want to ensure that critical decisions stay in the hands of your partner: a durable power of attorney for finances and health care directives.

Without these documents, your partner may face tremendous emotional and practical problems when trying to make health care decisions for you in the event of a medical emergency or handle a simple financial transaction on your behalf when you're not able to. At worst, your health care and finances may be placed in the hands of a biological relative who won't consider your partner's input, and this relative may well make decisions that go against what you want.

Fortunately, the documents you need are straightforward and usually easy to complete. (To learn more about both medical and financial powers of attorney, see Nolo's Power of Attorney Resource Center.)

Health Care (Medical) Directives

Every state has laws authorizing individuals to create simple documents setting out their wishes about the type of medical treatment they want (or don't want) if they become unable to communicate their own decisions. These documents may also name someone to direct their care.

Health care directives are particularly important for unmarried partners, although married people should have them, too, to avoid conflict with other family members. If you don't take the time to prepare a health care directive and you become incapacitated, doctors will turn to a family member designated by state law to make medical decisions for you. Most states list spouses, adult children, and parents as top-priority decision makers, making no mention of unmarried partners.

A few states do include partners in their list of potential surrogate decision makers -- including Arizona, Delaware, Maine, and New Mexico. However, only New Mexico gives priority to a long-term partner. Other states make room for unmarried partners (sometimes classifying them as "close friends") only if listed family members are unavailable. Additionally, in the states where marriage, domestic partnership, or civil unions are available for same-sex couples, spouses or registered partners have priority over other family members. However, no matter what state you live in, you can save your partner a great deal of time and trouble by planning ahead.

Creating a Health Care Directive

There are two documents that permit you to set out your health care wishes, both grouped under the broad label "health care directives." (To learn how to make a health care power of attorney in your state, see Nolo's articles Create a Living Will and Health Care Power of Attorney in Your State.) 

Health care declarations. First, you need a health care "declaration," a written statement you make directly to medical personnel that spells out your wishes for medical care if you become incapacitated. Your declaration functions as a contract with your treating doctor, who must either honor your wishes for health care or transfer you to another doctor or facility that will honor them.

Durable powers of attorney for health care. The second document is usually called a "durable power of attorney for health care." In this document you appoint the person you choose -- most likely your partner -- to see that your doctors and other health care providers give you the kind of medical care you want to receive. You can also use your durable power of attorney for health care to give your partner (who may be called your "attorney-in-fact," "agent," or "proxy," depending on where you live) other rights to participate in your medical care, including:

• directing your health care under any circumstances that you don't specifically address in your declaration
• hiring and firing medical personnel
• visiting you in the hospital or other facility even when other visitors are restricted
• having access to medical records and other personal information, and
• getting court authorization to enforce your health care wishes if a hospital or doctor refuses to honor them for any reason.

Advance health care directives. In some states, your declaration and durable power of attorney for health care will be combined into a single document, often called an "advance health care directive."

Who Can Make Health Care Directives?

You can make valid health care directives if you are at least 18 years old and of sound mind. Being of sound mind essentially means that you are able to understand what the document means, what it contains, and how it works. Physically disabled people may make valid health care documents; they can direct another to sign for them if they are unable to do so.

You may change or revoke your health care directives at any time as long as you are of sound mind.

Financial Powers of Attorney

A durable power of attorney for finances allows you to name someone you trust (called your "attorney-in-fact" or "agent") to handle your finances if you become unable to take care of yourself. Every state recognizes this type of document. (To learn more about financial powers of attorney, read Nolo's article Durable Financial Power of Attorney: How it Works.)

As with documents directing medical care, you should seriously consider making a durable power of attorney for finances if you want your partner to manage your money if you become unable to. If you don't prepare the document and you later become incapacitated, your partner or other family members will have to ask a court for authority over your financial affairs. These proceedings, called "conservatorship proceedings," can be time-consuming and expensive -- and they can be disastrous for unmarried couples if the court names another family member to take over, especially if your finances have been intertwined with those of your partner for a long time.

You can make your financial power of attorney effective immediately, or you can specify that it should go into effect only if you become incapacitated; the latter is called a "springing" power of attorney. While some people are more comfortable making a springing document, an immediately effective document holds a potential advantage for unmarried couples in a long-term, trusting relationship. If you make your document effective immediately, your partner can handle financial transactions for you at any time, even when you are not incapacitated. This can be useful if you are out of town, under the weather, or temporarily unavailable for any other reason.

When you make a durable power of attorney for finances, you can give your partner (or other attorney-in-fact) as much or as little control over your finances as you wish. The powers you grant may include:

• using your assets to pay your bills and everyday expenses
• buying, selling, maintaining, paying taxes on, and mortgaging real estate and other property
• collecting benefits from Social Security, Medicare, or other government programs or civil or military service
• investing your money in stocks, bonds, and mutual funds
• handling transactions with banks and other financial institutions
• buying and selling insurance policies and annuities for you
• filing and paying your taxes
• operating your small business
• claiming property you inherit or are otherwise entitled to
• hiring someone to represent you in court, and
• managing your retirement accounts.

Like health care directives, you can make a durable power of attorney for finances if you are at least 18 years old and of sound mind. And you can change or cancel your document at any time, as long as you are of sound mind.

If you live in California, you can learn everything you need to know about powers of attorney in Living Wills & Powers of Attorney for California, by Shae Irving (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com