Do I Need a Power of Attorney if I am Married?

As an estate planning and elder law attorney, I frequently stress the importance of having a healthcare power of attorney and financial power of attorney (known as a “general durable power of attorney”) in place. As a response, I often get question as to whether a power of attorney is needed if an individual has a spouse. The answer is an emphatic “yes.”

Your Spouse has Limited Authority

Despite having become a union through marriage, a married couple are still individuals in the eyes of the law. Consequently, there are many things that one spouse cannot do for the other without express written authority to do so. For example, if one spouse has an IRA or 401k, the other spouse cannot access that account. Another example is real property. If spouses own real property-even if the property is in just one spouses’s name—it takes both spouses to sign off on the sale, conveyance, or mortgage of that property. Imagine if one spouse is incompetent, incapacitated, or otherwise unable to act. Without power of attorney, the healthy spouse would have no ability to access the retirement account or to handle the real property—whether to sell it or protect it (e.g. move it into trust).

You Need Power of Attorney Even if Everything is Joint

Power of attorney doesn’t just give a person authority to access assets, it also gives them the authority to enforce your legal rights. Thus, if one spouse is unable to act, the other spouse can step in an ensure that they and their assets are protected from things like medical debt and long-term care. Additionally, they could not bring a lawsuit on your behalf if you’ve been mistreated or otherwise suffered damages (e.g. car wreck, medical malpractice etc.).

Healthcare Power of Attorney is Also Necessary

Every now and then, someone will say that they don’t need healthcare power of attorney because the hospital/medical staff with defer to the next-of-kin. It is important that we clear up this myth. It is true that the hospital/medical staff with ask certain things of the next-of-kin; however, this is simply to absolve the hospital/staff of liability. If they get the authority of the next-of-kin, then its much harder to sue them for their actions.

However, if you want someone to make decisions with regard to procedures, medication, pain management, access to medical records, and the ability to apply for much needed long-term care benefits (to pay for the crazy high costs of long-term care), you must have someone designated under power of attorney.

The Alternative is Guardianship

For those who do not have a power of attorney in place, the alternative method to be able to act on their behalf (if they are incompetent or incapacitated) is guardianship. Guardianship is where you petition the court to have someone declared legally incompetent and have the state intervene. Someone is appointed to act on their behalf and the person, now known as the “Ward,” can no longer act on their own behalf. Guardianship should be avoided at all costs.

The best way to avoid guardianship or any of the legal pitfalls discussed in this article is to have a power of attorney in place, even if you’re married.






Brenton S. Begley

Attorney at Law

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Greg McIntyre, JD, MBA

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