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Can a common law spouse make healthcare decisions?

My partner and I have been together for 35 years, until last year it was illegal for us as a same sex couple to be married. My partner had a heart attack a couple of weeks ago, he is doing better but it got us thinking about what if things had been worse. We are planning a wedding early this summer but if something happens to one of us before then who has the right to make decisions regarding healthcare?
Status: Open    Mar 22, 2016 - 06:24 PM

Elder Law

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Expert Answers

Mar 31, 2016 - 11:21 AM

Not many states are "common-law" states anymore, so unless you live in a state where common-law marriage is recognized between different sex couples, you can't claim that status either.

Rather than relying on a judicial determination of your marital status, the easiest thing to do is to have an elder law attorney draft Advance Directives for Healthcare, sometimes known as a Living Will and Appointment of Healthcare proxy, and possible HIPAA waivers for each of you. Without these, you will both find it difficult to override blood relatives on any healthcare decisions and if you are not on good terms with his/her family, you might not even get a chance to visit him or her in the hospital if they don't want you to be there.

While you are at it, you might also execute new wills that set out who brought what into the relationship and who gets what when you die. His or her family could swoop in at his or her death and claim it was all his or hers and you would have to spend money to defend yourself. As Barney said, nip it in the bud now.

Hope this help.s

William G. Nolan
Birmingham, AL

Apr 01, 2016 - 10:11 AM

Regarding heath care decisions, any person can appoint a Health Care Representative (also sometimes called a Health Care Power of Attorney). This can be a child, a close friend, a spouse, etc. I have even had clients who are legally married but have established a sibling or child as their primary Health Care Representative because of the burden that making these decisions would be too much for their spouse. The Health Care Representative is then the person who is authorized to make decisions in case of emergency.

Different states may have different requirements as to the wording for this appointment therefore I would advise seeing a local attorney for assistance. I also include a HIPAA release in my documents so that the doctors and/hospitals can disclose all pertinent information.

Apr 01, 2016 - 10:13 AM

In order to ensure there is no question about who is to make health care decisions, I recommend you each sign a health care power of attorney, which may be included in an Advance Health Care Directive. This document will name who is to make decisions for you. It would also allow you to name successor agents (someone to act if you partner cannot).

Apr 04, 2016 - 10:18 AM

I would suggest setting up a durable healthcare power of attorney. This is a legal document that authorizes an appointed person to handle and make decisions about your health needs and goes into effect when you are unable to make or communicate decisions about your health care.
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