Medical Obligations May Be Impediment To Marriage

Question: My lady friend and I -- she is 62 and I am 67 -- decided not to get married for a lot of reasons, not the least of which is that each of us have children and do not want to be held responsible for each other's medical and nursing home bills. However, each of us wants the other to handle the assets and affairs should the either of us become ill, and each of us wants to leave each other assets in our wills. What do we need to do and what documents do we need?

Answer: Because of the risk of medical obligations and other financial detriments of marriage, we are seeing more letters from our readers about their decisions to co-habit, rather than marry. In order to make sure your wishes are carried out, you need to find a competent lawyer who can discuss the specifics of your particular situation based on the law of your state and then prepare your documents. Because some states recognize common law marriages which are based on intent, and because you may not be able to state your intent if you are incapacitated, it may be a good idea to consider signing a co-habitation agreement that affirmatively states that without a marriage ceremony, you do not intend to be married.

Aside from this, you and your partner probably need two documents that deal with your property -- a will and a durable power of attorney -- and two documents that deal with your health care -- a living will and a durable power of attorney. A power of attorney is a written document by which you give a trusted person over the age of 18 -- called an attorney-in-fact, a proxy, or an agent -- the legal authority to act for you under certain circumstances. All states authorize these documents. Through creative drafting, you can control how much power to give your agent, when the power is effective, and under what conditions the power may be exercised. Because the primary agent may not always be willing or able to act, you should choose alternative agents.

In order to be effective after you become incapacitated - which is when you really need it, your power of attorney must be "durable". In this way, should you become unable to handle your affairs, your agent should be able to take over your finances immediately without the expense of court intervention.

If you don't want your agent's authority to become effective until you become incapacitated, then you may want to consider a "springing durable power of attorney" where the agent's authority "springs" into effect when you become unable to act for yourself. You can even define what "incapacity" means -- for example, "I will be deemed incapacitated when two doctors, one of whom is treating me, certify in writing that I am not able to handle my affairs."

Remember: You can change or cancel a power of attorney at any time after you sign it -- so long as you still have mental capacity and follow with the law of the state where you live.

Each of you also needs a will through which you can control what happens to your property at your death. You may change or cancel your will at any time after you sign it -- so long as you still have mental capacity and follow the law of the state where you live. If you don't have a will, you forfeit your right to direct where your property goes when you die to an arbitrary list of people created by the legislature of your state. In other words, since you and your lady friend are not "related by blood or marriage," without a will, she would receive nothing. You and she may want to consider the use of reciprocal wills with "no contest" provisions to attempt to discourage potential attacks by family members. To do this, property or money is left to one or more blood relatives who are most likely to later attack the will. Should there be an attack, then that distribution is canceled.

We remind you that these matters should not be taken lightly and "doing it yourself" is strongly discouraged. Living trusts and health care advance directives will be discussed in upcoming columns.