Planning for the death of an unmarried partner is critical, but so is planning for the possibility that one partner becomes sick, disabled, or incapacitated at some point during their lifetime. Under the laws of most states, an unmarried partner has zero rights to manage finances or make medical decisions when something happens to the other. As a Santa Barbara estate planning lawyer, I have seen this happen all too often.
Here's an example of what could happen: say one partner, Bob, is in a car accident and immediate decisions need to be made about his care, including whether to proceed with life- saving measures like blood transfusions or the insertion of a feeding tube.
Although Bob's partner of 15 years, Jane, knows his medical wishes the best, the doctors will need to comply with HIPAA laws which prevent Jane from making decisions because she doesn't have the right legal documents in place. In order for her to gain those rights, she'll need to go to court on an emergency basis to become his healthcare representative. However, “blood family members” can also ask the court for the right to manage Bob's legal and financial affairs, and many times, the court gives blood relatives preference over an unmarried partner. In continuing our example, assume the court grants these rights to Bob's adult children over Jane (which is a likely scenario). The children could then bar Jane from visiting the hospital room and shut her out of everything, no matter how long Bob and Jane have been together.
How to Avoid This Situation
The best way for unmarried partners to ensure that they have rights to make decisions and to speak for the other in the event of a medical emergency is to create a legally binding Health Care Proxy, Living Will, and HIPAA authorization form. Sometimes these forms are collectively referred to as an “Advanced Healthcare Directive.”
- A Health Care Proxy legally authorizes the unmarried partner to assume control over decision making and healthcare management in the event of a medical crisis.
- The Living Will outlines the partner's wishes concerning medical and end-of-life care. While the Health Care Proxy gives the partner the ability to actually make decisions, the Living Will outlines the partner's preferences for what type of care they do or do not want if they cannot speak for themselves.
- HIPAA Authorization Form offers a final layer of authority for the unmarried partner to communicate directly with doctors and access medical records. Every doctor's office will want this document on file in order to communicate with the unmarried partner. By creating it in advance you can save a ton of time, headaches, and problems in a true medical emergency.
Every co-habiting couple should have these simple documents in place to ensure that they can support their partner and make fast life-or-death decisions in a medical emergency. If you need assistance getting started and would like to speak with an estate planning lawyer, we invite you to contact our law firm where we'll be happy to sit down with you and your partner to review your options.