While spouses inherently have certain rights and privileges to access joint property and make important medical decisions on their spouse’s behalf, there are some limitations to those rights.
When unexpected illnesses, injuries, and emergency situations arise, many people are surprised to discover that they don’t automatically have a power of attorney for their spouse. To prepare for unexpected contingencies, it’s important to plan ahead with the proper estate planning documents, including a durable power of attorney and an advance healthcare directive.
Durable power of attorney
A durable power of attorney is a voluntary agreement that authorizes an agent (known as the attorney-in-fact) to act on behalf of another adult. A power of attorney typically grants broad access over the issuer’s legal and financial affairs, though the agreement can include provisions that limit the agent’s activities.
For example, some power of attorney agreements are designed to take effect when the issuer becomes incapacitated. Other agreements may grant the agent access to some assets but restrict access to others, such as authorizing control over personal financial assets but retaining access to business assets.
That said, most power of attorney contracts are short and simple, offering the agent access over anything and everything. This is especially true when someone issues a power of attorney to their spouse since the spouse probably exercises some control over the assets in question anyways (even if it’s informal).
Having a durable power of attorney for your spouse is most helpful when he or she becomes incapacitated and is unable to handle their own affairs, or when they’re out of the country. Without a power of attorney, you may have a difficult time making major transactions like selling the house or buying a car.
If you and your spouse share control of a business, or if your spouse is the sole proprietor of a business, it’s probably a good idea to include provisions in the power of attorney to grant legal access to the business to avoid losing a primary income source.
Healthcare power of attorney
As the name implies, a healthcare power of attorney grants an agent the authority to make important medical decisions for the issuer if they become incapacitated. It’s important to note that a spouse inherently has the right to make medical decisions for their spouse, but healthcare privacy laws (HIPAA) may restrict a spouse from accessing their spouse’s medical records.
To avoid this hassle, it’s a good idea to include healthcare access for your spouse in their durable power of attorney.
Advance healthcare directive
An advance healthcare directive (also known as a living will) is a legally binding document that outlines your preferences for medical treatment. If you become incapacitated and cannot communicate important medical decisions, your doctors will consult your advance directive to determine the best course of action. Similar to a power of attorney, an advance healthcare directive can be as broad or as specific as you need it to be.
You can broadly authorize any and all medical treatment to save and sustain your life, or you can address important topics individually. Some of the topics that are commonly addressed in an advance directive include palliative care (treatment for pain and suffering), resuscitation (such as a do-not-resuscitate order), artificial life support, and organ donation.
It may seem redundant to have an advance healthcare directive if your spouse already has the ability to make medical decisions on your behalf, but most estate planning attorneys still advise drafting one for several reasons. First and foremost, clearly laying out your healthcare preferences takes an enormous amount of pressure off of your family members in emergency situations.
Rather than worrying about what you would want and making the wrong decision, your family will clearly understand your wishes. On a similar note, topics like palliative care and artificial life support can be divisive, especially if your spouse decides on a course of action and your parents or other family members strongly disagree. When your wishes are stated clearly in black and white, it eliminates the grey area.
Having a backup plan
If your spouse is your primary attorney-in-fact, it’s important to consider the possibility that you and your spouse could both become incapacitated in an accident. If that happens, who will step in to handle your affairs? If you have minor children, who will care for them?
To prepare for this contingency, it’s a good idea to issue a special power of attorney to someone else who can step in if—and only when—your primary attorney-in-fact becomes incapacitated. You’ll also want to draft a will that designates a guardian for your children, so that it’s easy for the court to appoint a temporary guardian for your children while you’re incapacitated.
Alternatives to a power of attorney
If you become incapacitated and you haven’t issued a power of attorney, your spouse will need to apply for guardianship. To do that, they’ll need to obtain a certificate of incapacitation from your physician, submit a petition for guardianship to the court, serve a Notice of Hearing to all of the interested parties, and advocate for guardianship in a formal hearing.
During the process, the court will also need to appoint an attorney to ensure your rights are protected, and the court may hire an investigator to assess your spouse’s claim. Contrast that long, complicated process with the fact that you can draft a power of attorney in a few minutes, and it’s easy to see why issuing a power of attorney is always the better route.
Another alternative is conservatorship. Where guardianship usually grants your caretaker the authority to manage all aspects of your affairs—your finances, health care, and living situation—conservatorship restricts your caretaker to only exercising control over your finances.
Conservatorships may be useful when the incapacitated adult has sufficient mental capacity to make healthcare and living-situation decisions but lacks the capacity to responsibly manage their finances. The process for granting a conservatorship is the same as granting guardianship, so drafting a power of attorney is still the better option.