Cohabiting & COVID
More and more committed couples are sharing their lives together, but not formalizing their commitment with a legal civil marriage. Even before COVID disrupted all of our lives there were special estate planning concerns for committed cohabiting couples, now those concerns are front and center as more and more are faced with hospitalization, incapacity, and even death. So, what do you need to know if you are a committed, unmarried couple?
If you are married, the law creates certain default protections for spouses and grants them certain preferences. That is not the case for unmarried couples. Your partner is not the default under any statutory scheme in Texas as far as priority for serving as your medical agent, financial agent, guardian or administrator of your estate. In fact, your next-of-kin will likely be the one with more authority to take on any of these roles if you don’t execute formal documents giving your partner authority to act on your behalf. In some cases, you may not have seen your next-of-kin in months or years and now they will be charged with making the most intimate decisions of your life. If you fail to plan and the need for someone to make medical decisions or financial decisions for you arises, it will inevitably result in conflict and discord between your partner and family.
MEDICAL POWER OF ATTORNEY
A medical power of attorney allows you to appoint an agent to act on your behalf with respect to your medical treatment and medical decisions if you are unable to do so. Pre-COVID, perhaps your partner would be with you in the hospital and even if they did not have the legal authority to act on your behalf, they may have a kind of third-party access to understand your medical status. Now, with COVID, you will more than likely be alone in the hospital and your physicians will communicate with your agent by telephone to make medical decisions for you and to discuss your medical status. It’s in effect a “closed-system” and information will be limited to those who have authority to receive medical information and make medical decisions. Make sure your wishes are carried out by executing a Medical Power of Attorney appointing your partner.
DURABLE POWER OF ATTORNEY
A durable power of attorney allows you to appoint someone to act on your behalf with respect to financial decisions. It may be made effective immediately or only upon your disability or incapacity. What if you are hospitalized? Who will take care of your rent, bills, move money between accounts, renegotiate payments? Only the person you have named under a valid Durable Power of Attorney will be able to handle these personal affairs for you – naming your partner will help you ensure that there is no disruption to your financial matters.
GUARDIANSHIP IN ADVANCE OF NEED
A guardianship in advance of need allows you to appoint someone to act as your legal guardian if the need arises – that is, if you are ever deemed by a court of law to be incapacitated. Your partner will not be on the long list of “preferred” candidates under the statutes. If it’s your wish that your partner decide where you will live, your medical care, financial decisions and the like, make sure you have made this wish known by executing an Appointment of Guardian in Advance of Need. Unless your partner is not qualified to act as your guardian, the court will likely grant your wishes.
Unless you execute a Will that specifically gives your estate (e.g. your assets) to your partner, they will be left out completely of any inheritance. There is no default provision that would provide for your partner. If you want your partner to handle the administration of your estate, you need to specifically name your partner as Independent Executor in your Will; otherwise, an unmarried partner has no legal right to act on behalf of the estate in this capacity. Failing to execute a Will that sets out your intentions where your partner is concerned will ultimately leave your partner with no legal rights and no inheritance.
APPOINTMENT OF AGENT TO DISPOSE OF REMAINS
An agent to dispose of remains is the person who ultimately determines what happens to your remains. If you have a valid appointment with an agent to dispose of remains, that person will be the only person who will have access to your remains and the only person that the funeral home will talk with when making decisions about your remains. Without this document, your next-of-kin (as determined by Texas statutory provisions) will have the authority to make these decisions.
Protect yourself and your partner by making sure you have these important documents in place.