Couple has been “together” for years. They live together and maintain separate income and financial responsibilities. The both have adult children from previous relationships. They are happy. Unfortunately, the man has a heart attack and is hospitalized. The woman and the man’s children are in the hospital frantic and worried. The Doctor comes in and asks for the next of kin? He wants to know who can make health care decisions and/or end of life decisions for the man should it become necessary?
The woman shaken and teary eyed says as they have been together for years and she for all intent and purposes is the wife. The man’s children speak up and angrily say she is not our Dad’s wife – they were never married and did not hold themselves out as common law married – they just lived together. Dad’s children assert that they are the ones who should be making health care decisions or end of life decisions for their father. The Doctor asked the woman if she and the man were married. She says, no but she knows him better than anyone. The Doctor can only do one thing. So he focuses on the children and shares with them the state of their father’s health and prognosis going forward.
Estate planning in this instance is crucial. The court has a hierarchy as to next of kin for married and unmarried people. For married persons, it’s the spouse. For unmarried persons, it’s their children, or parents or siblings and in that order. If the man had an estate plan there would be a medical power of attorney and financial powers of attorney designating responsibilities to those he selected to handle his medical and financial affairs should he become incapacitated. The estate plan would also have a directive to physicians that would have indicated his preferences for end of life care, removing that burden from his family.
Remember: Estate Planning is necessary for all families, couples and individuals – married or not.