By Cynthia Jackson, Esq.
Two individuals may be devoted to one another, may share one another’s lives and most intimate secrets. While they may be a couple in the eyes of the world, if they are not legally married, the law considers them to be strangers to one another, in the absence of legal documents that establish their rights.
Many unmarried couples, particularly those who are relatively young, accept this legal position on the apparent theory that they have plenty of time to do their planning. In truth, most of us do not enjoy contemplating our own death or disability, even though we know that they are realities of life.
For the unmarried couple, though, procrastination can have serious consequences.
For example, the law does not allow a partner without the required legal documents to participate in making health care decisions for the other partner if that partner is unable to make them for himself or herself. The privacy regulations contained in HIPAA state that health care providers are not permitted to tell the other partner about a sick or injured partner’s condition unless he/she is the designated health care representative. Rather, a parent, sibling, or other blood relative is often contacted and given preference in receiving information and making health care decisions for that partner.
If one of the partners owns a residence in which the couple resides, and if that partner becomes incapacitated or dies without having created documentation protecting the other partner, the remaining partner is likely to be left without a roof over his or her head. Further, the remaining partner may be left without funds to pay their mutual bills and the bills for the partner’s care. If the residence is to be titled in both names, care should be taken as to how the deed is drawn. Half ownership will have a different set of consequences from joint tenancy with right of survivorship, and even those who think they know the difference may not be aware of all of the implications involved in the way a deed is drawn.
To prevent unintended consequences such as those stated above, unmarried partners should have, at a minimum, a health care surrogate designation, a durable power of attorney, and a will that puts into writing what their wishes are with regard to their property in the event of their death. Other documents that may be appropriate include a living will (if one or both partners does not wish to be kept alive by artificial means in the event of a terminal condition), a property agreement that specifies disposition of a common residence in the event of a break-up or death of a partner, and a preneed guardianship designation. The preneed designation allows an individual to designate who would act as his or her guardian if he or she were to become incapacitated. It can be helpful in situations in which family members may not be supportive of the relationship and seek to take control of a disabled person’s life by means of a guardianship proceeding. The preneed designation will normally preempt such a proceeding.
If you are in a committed long-term relationship but have not legally documented that relationship, we encourage you to make your own choices to avoid having the law make them for you.