Very few married couples realize the importance of putting plans in place to care for each other in the event of a tragedy or even just the natural passing of the years. Every married couple, whether newlyweds or golden anniversary couples, need to ensure they have effective estate plans in place to protect and provide for their spouse . . . in sickness and in health.
Without prior planning, disability due to an illness or injury might cause needless legal and financial challenges in a marriage. Fortunately, a little preparation now could help avoid disaster down the road. Below are some of the most essential strategies to help you honor your wedding vows to take care of each other.
Most married couples have the mistaken belief that they can make personal, health care, and financial decisions for one another should either spouse become disabled, just by virtue of their marriage certificate. In reality, that is not true.
Every adult American citizen is entitled to make his or her own personal, health care, and financial decisions, without interference by anyone else. Accordingly, if one spouse becomes legally disabled, the other spouse (i.e., the "healthy" spouse) will not automatically be able to make decisions about the disabled spouse's medical treatment. The healthy spouse will not have automatic access to the disabled spouse's medical information and doctors may even refuse to discuss the disabled spouse's condition or treatment plan with the healthy spouse.
The healthy spouse also will not have access to any assets that are solely in the name of the disabled spouse, such as bank accounts, retirement plans, stocks, etc. In fact, the healthy spouse will not even be able to file a joint income tax return for the couple.
Unless, prior to disability, spouses have legally appointed each other to be each other's health care agents to make medical decisions and financial agents to handle financial affairs in the event of either's disability, then decisions and actions regarding a disabled spouse's personal, health care, and financial affairs will come to a screeching halt.
Without putting simple documents in place--a Financial Power of Attorney, an Advance Health Care Directive (which includes a Health Care Power of Attorney), and a HIPAA Authorization (Health Insurance Portability and Accountability Act)--you may find yourself in court trying to convince a judge to allow you to make personal and private decisions for your spouse. The last thing most of us want to do when our spouse become disabled is hire an attorney, spend a lot of money, and go to court to convince a judge, in an open forum, that our spouse is legally incompetent.
This process is known as the guardianship process. In a guardianship case, the healthy spouse must hire an attorney to bring suit declaring the disabled spouse as legally incompetent and petition the court the court to give the healthy spouse legal authority to act on behalf of the disabled spouse. The judge must then appoint a different attorney to represent the disabled spouse against the petitioning spouse. Eventually, after considerable procedures, expense, and disclosure of private matters, the judge may appoint the healthy spouse as the Guardian of the Person (to handle health care affairs) and the Guardian of the Property (to handle financial affairs) of the disabled spouse.
Fortunately, there are steps you can take now that will cost much less in time, expense, and personal anguish, through proper estate planning. If you are at least 18 years old and married, then you may legally appoint your spouse as your agent to make health care and financial decisions for you. The necessary legal documents include a Maryland Financial Power of Attorney; a Maryland Advance Health Care Directive (which includes a health care power of attorney); and a HIPAA Authorization.
Each of these documents should be a part of every standard estate plan. Whether you have accumulated assets together over years of marriage, or you are just starting your lives together, it is not to early to plan your estates. Just because you are young and have few assets, estate planning is critical to ensuring you and your spouse can care for each other as promised in your vows.
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