Updated: Jul 19
What would happen in the event of your incapacity through an accident or illness? This is a
really critical topic for unmarried couples. Why? When you are in a partnership that is not
recognized by law through marriage, the rights that are afforded married couples with regards
to medical incapacity (like inheritance) are not necessarily recognized for unmarried couples.
The good news is these types of decisions can be implemented through your estate plan.
So, what are we talking about here?
We are talking about you choosing who is making financial and medical decisions if you were to become incapacitated and could not make those decisions for yourself. If it is your trusted partner, then you could name your partner as power of attorney (POA).
Just as a refresher, a power of attorney, or POA, is a legal document where you give another individual the power to make important legal or financial decisions on your behalf. If no Agent has been named following your incapacitation, then most likely a family member would be
appointed by a judge. If there's no family member, your unmarried partner could apply,
however there is no guarantee that the court will grant this.
The other option would be to have a judge appoint a “professional guardian”. A guardian may
be a non-relative appointed by the courts. In many states, these are referred to as “professional guardians.” Although New York does not have professional guardians in the conventional sense, the courts have access to a list of individuals who are repeatedly named as guardians by the courts. In addition, New York City has a higher percentage of nonprofit guardians chosen than other areas throughout the state. Professional guardians can be beneficial to people who do not have family members or close friends who are able or willing to step into the role.
However, there are some down sides which include the fact that they can be very expensive.
Essentially it would begin to drain your wealth and assets just to have the court appoint a
guardian to fulfill this fiduciary role. It is the least economical option. By the way, with professional guardians there is always the risk of people you don’t know taking advantage of you, financially and in other ways, when you are incapacitated, and it has been known to occur, unfortunately, on too many occasions.
However, if you are in an unmarried partnership, you could name your partner as your agent
through the power of attorney, so they would be able to make these important decisions on
your behalf. That includes paying bills, receiving government benefits, selling your home,
running your business, paying taxes - all of the financial decisions that you would normally do.
In some states, power of attorney documents can cover a wide range of other decisions
that would otherwise require consent of both partners including long-term care and end-
of-life decisions. However, in New York, you would need specific forms to authorize your
partner to make medical decisions on your behalf, which we discuss in Part Three.
Remember, if you don't take the time to prepare your power of attorney documents now and
you become incapacitated, no legal or financial decisions can be made without a court
appointed guardian. Most courts often ignore unmarried couples, and instead seek input from
spouses, adult children, and parents.
I find that people think that estate planning is mostly done when you're elderly and
contemplating death or when you're married and have a family. But as you can see from
today's topic, unmarried couples, may need it more because they're not protected by the law.
If you have any questions, we'd love to hear them. Stay tuned for Part Three of our
Unmarried Couples blog series. We look forward to doing some planning for you!
Want to speak with us directly?
About the Author
Leslie has been practicing law since 2009 and is the host of the estate planning podcast 'Legacy Purse'. She has a long history of representing family members struggling to inherit property and/or wealth from deceased family members through the Probate Courts. Knowing how time-consuming and expensive the probate process is, Leslie takes great pride in helping her clients learn how to plan and protect their families during their lives so they can avoid the probate court process and save their loved ones that additional grief (and expense).