Incapacity Planning Outside of Marriage

As we get older, the formality of our relationships changes. Many older couples live together without marriage. Or, we may be in committed relationships, but living apart. Or, we may have supportive relationships without being a couple at all. All of this works, but needs to be protected in case of incapacity.

If incapacity happens outside a legal relationship, our important people may be excluded from receiving vital health care information on our behalf, or worse, kept out of our room in the hospital or other care setting.

You can protect against this with an Advance Health Care Directive that appoints your chosen agent to have access to your health care information and to make health decisions for you. Your Advance Health Care Directive can include your direction for sharing protected health information with others who are not your designated agent and directions for visitation by your important people.

We also need to protect ourselves and our important people when it comes to our finances. Every one of us needs a Durable Power of Attorney. This could not be more true than when we have no legal relationship with the people we rely on. Bills need to be paid, and important financial decisions may need to be made. But, without a properly executed Durable Power of Attorney giving a named agent authority to act on our behalf, the bank cannot give access to our accounts. Imagine if your housemate is financially dependent on you, but your assets were essentially frozen because of a lack of legal financial documents.

If you own your home in your Living Trust, you want to make sure a housemate is protected. If you have to move to a supportive care facility and will likely not return to your home, your Trust can give the Trustee direction protecting your housemate's rights to continue living in the home, even if for only a limited time, and including directions for how the expenses will be paid.

When we think of estate planning, we are usually focused on what will happen when we die. But, we cannot ignore the likelihood of incapacity. Sadly, incapacity can happen suddenly with no ability to plan once it happens. If you are relying on important people outside a legal relationship, planning ahead is especially important.

Planning Ahead Column

By Lisa Alexander, Esq.

JAKLE, ALEXANDER & PATTON, LLP

Direct Line: 310-656-4310

alexander@jaklelaw.com