Question: After bad divorces, my girlfriend and I (both 55) decided not to marry and moved in together. Her children never approved of our arrangement. Last year, she was involved in a serious automobile accident and suffered permanent physical and neurological injuries that not only affected her ability to communicate, but also rendered her unable to care for herself. Because we were not married, I have been excluded by her children from helping with her care and financial dealings. Is there anything I can do?
Answer: Absent written documents to the contrary, marriage brings with it the right of one spouse to manage the financial and health care decisions of an incapacitated spouse and, depending on where you live, the financial responsibility for certain medical obligations.
In a non-marital relationship, however, there are no such rights and obligations. Therefore, without the necessary documents in effect - such as wills, health care powers of attorney, and durable powers of attorney -- family members, not the partner, will be "first in line" when it comes to controlling the financial affairs and medical treatment decisions of an incapacitated person. In fact, without appropriate health care documents, a non-married co-habitant may be denied the right to see his or her partner in the hospital.
That's why both partners to any type of non-marital relationship should make written choices about who will make medical and financial decisions while they are still able to make decisions. Through a health care power of attorney, a person chooses what medical treatment he or she wants -- and does not want -- and appoints an agent to make medical decisions in case of incapacity. Through a durable power of attorney, a person appoints an agent to make specific financial decisions in the case of incapacity.
Coordinated planning and use of written documents is especially important for unmarried co-habitants because they are not considered "family" for legal purposes. For example, because relationships between unmarried partners are not recognized by state inheritance laws, wills are essential to assure that planned distribution of assets are not frustrated. And because unmarried cohabitants are not considered relatives, without a durable power of attorney, a family member may be appointed by a court as conservator to handle the financial decisions of an incapacitated partner.
Today, more than ever, unmarried co-habitants must be attuned to these issues, become informed, and prepare to attempt to avoid what could otherwise be disastrous consequences.
But even the most coordinated planning and the best-drawn documents may be challenged by angry families and frustrated by legal challenges. Bottom line: There are no guarantees. So unmarried co-habitants must become the architects of their futures by asking the right questions and then implementing plans that will help them maintain control over their lives.
Because the laws governing these documents vary from state to state and because there may be tax and other implications, you will be well-advised to seek competent legal counsel who can help you facilitate your plan. And even if you have already done so, it does not hurt to review your plan every year or two to make sure you have not left anything out.
Because of the volume of questions in this area, future columns will deal with the importance of health care and financial documents in the context of divorce and co-habitation issues.
For more information, click on "Unmarried Cohabitants".
Jan Warner is a matrimonial, tax, and elder law attorney. Jan Collins Stucker is an award-winning writer. Send questions to Flying Solo at P. O. Box 11704, Columbia, South Carolina 29211 or by email to firstname.lastname@example.org. Because of volume, questions can be answered only in the column or on the website.
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