Roughly 5.8 million people in the United States have Alzheimer’s disease and related dementias. What if you or your spouse could no longer able to make your own healthcare decisions? What if you could no longer manage your finances? Do spouses automatically have power of attorney?
Let’s imagine that your spouse is not able to make their own healthcare or financial decisions. Did your spouse sign Power of Attorney documents? If so, and if you are the named agent in your spouse’s POA, then you can make decisions for your spouse.
What Happens If You Don’t Have Legal Documents In Place
If you and your spouse don’t have legal documents in place, then you must go to court. A court would need to appoint you to make decisions for your spouse. You are not automatically your spouse’s power of attorney.
In this case, the court must decide who will control your spouse’s medical and financial decisions. This court process is called Guardianship and Conservatorship. (In Arizona, guardianship is a court proceeding that gives the guardian the right to manage all business and personal matters for an incapacitated person. A conservatorship gives the conservator the right to manage money and property of the incapacitated person.)
A common myth is that you can automatically step in and make health and financial decisions for your incapacitated spouse. But that’s not true. You can only make the decisions for an incapacitated spouse if there are legal documents in place. Otherwise, someone will need to file for guardianship and conservatorship with the court.
Here’s a scary thought. Other relatives could also try to become guardian and conservator. You might be competing with your spouse’s adult children. You could be competing with your spouse’s ex.
The Britney Spears Example
This is like what happened to Britney Spears. Her case consisted of two parts: one for her estate and financial affairs, the other for her as a person. Britney Spears was under the conservatorship of her dad since 2008. A Los Angeles judge finally freed her to make her own decisions in November 2021. During this 13-year-long drama, she was fighting with her own father and others to be able to control her own life. As you can imagine, the judge listened to mountains of testimony over an extended period. The entire process was humiliating, time consuming and expensive.
Do Spouses Automatically Have Power of Attorney: Health Care Matters
Let’s talk more about what happens if your spouse doesn’t have a Health Care Power of Attorney naming you as the agent. Luckily, in many instances a spouse can still make health care decisions for the other spouse. That’s not because the law allows it. However, it’s more because the medical staff live in the real world. If a medical decision needs to be made, they will naturally ask you as the spouse for permission.
But … if there’s a disagreement between you and other family members, then the hospital will probably do nothing. They don’t want to be sued for making the wrong decision. In that case, you will be forced to go to court and ask to be appointed. In Arizona, you would be asking to be appointed as your spouse’s guardian.
After you file a Petition with the court asking to be appointed guardian, other family members can object to your petition. Those family members can ask for themselves to be appointed. There will also be a court appointed attorney who could fight against you. The court will appoint an investigator to interview you and other family members, and then make a recommendation to the court. In many cases, the court could also appoint a Guardian ad Litem to investigate and make a recommendation to the court. Before long, you could have four, five, or more people all arguing over who should be named guardian of your spouse.
And it gets even worse. Rather than favor one side or the other, the court will often appoint a stranger as guardian. In Arizona, that would be either a licensed fiduciary company, or the Public Fiduciary.
All of these different people and companies are legally entitled to request that you and your spouse pay for their legal fees and costs. Let me say that a different way. Let’s say you have the following people involved in the guardianship case:
- Your attorney;
- The court-appointed attorney;
- A court investigator;
- A Guardian ad Litem;
- A court-appointed physician or psychiatrist; and
- Your spouse’s adult child’s attorney.
That is six people all charging their hourly rates all asking to be paid by you and your spouse.
Do Spouses Automatically Have Power of Attorney: Financial Matters
When it comes to finances, there is less leniency. If you and your spouse are named jointly on an account, then you can probably use and manage that account.
But think of all the other things you might want to do:
- Sell the house
- Get a reverse mortgage on the house
- Make a decision about your spouse’s retirement accounts
- Sell your spouse’s car
- Cancel or change your spouse’s cell phone contract
- Access your spouse’s email
- Sign a tax return
- Sign a check payable to you and your spouse
If your spouse did not sign a power of attorney appointing you as the financial agent, then you have to go to court. this is almost the same as discussed above. You have the same number of people all charging money and asking you to pay for their time. Except now the issue is over managing your spouse’s property and finances.
Do Spouses Automatically Have Power of Attorney: What About HIPAA?
The HIPAA Privacy Rule specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient’s care or payment for health care.
However, that’s not set in stone. Here’s an example that we’ve seen happen. A family member or even the government could get appointed on an emergency basis as your spouse’s guardian. If that happens without a hearing, you would not even know it was happening until after the fact. In that case, the guardian could instruct the hospital not to talk to you.
Imagine … your spouse is in the hospital or care home, and you can’t even see your spouse. You can’t’ even find out how they’re doing.
Does Guardianship Supersede Power of Attorney?
Yes. A court order appointing a guardian for an adult supersedes a health care power of attorney. If someone other than you gets appointed guardian of your loved one, and you are named as the agent in the power of attorney, you may be able to object on the basis of having priority for appointment pursuant to A.R.S. Section 14.5311. However, you will need to go to court to fight for your rights. If the guardianship gets terminated, the power of attorney may still be valid. Talk to an attorney to make sure.
If you want to be the person in charge of making business, health care, and personal decisions for your loved one, you should get an attorney to advocate for you. We can help. Call us at 602-443-4888. Or you can submit your information and we’ll get back in touch with you.
Does Conservatorship Supersede Power of Attorney?
Yes. If an Arizona court appoints a conservator for someone, any Durable General Power of Attorney that the incapacitated person signed is no longer effective.
If someone other than you gets appointed guardian of your loved one, and you are named as the agent in the general durable power of attorney, you may be able to object on the basis of having priority for appointment pursuant to A.R.S. Section 14-5410. Again, however, you will need to go to court to fight for your rights. If the conservatorship gets terminated, the power of attorney may still be valid. Talk to an attorney to make sure.
If you want to be the person in charge of managing the money and assets of your loved one, you should get an attorney to advocate for you. We can help. Call us at 602-443-4888. Or you can submit your information and we’ll get back in touch with you.
How to Prevent Future Problems
If you and your spouse can sign legal documents, it’s imperative that you get a comprehensive estate plan. It will include:
- Health Care Power of Attorney documents
- Durable General Power of Attorney documents for financial matters
- HIPAA Authorization
- Living Will (stating to let you die naturally if you are in a terminal condition and unable to express your wishes)
Of course, your estate plan will also include a Last Will and Testament, and possibly a living trust.
Next Steps If Your Spouse is Currently Incapacitated
If your spouse can no longer manage their health care or finances, then it’s really best to talk to an attorney about your choices. This might involve becoming appointed as the guardian and/or conservator for your spouse. An attorney can help ensure your success … so a stranger doesn’t end up being appointed.
Do spouses automatically have power of attorney? It depends on your situation. Probably not. But it’s best to talk to an attorney to find out for sure.
We’re Here to Help
I’m founding attorney Paul Deloughery. I over 24 years of experience as a lawyer in this subject. Along with estate planning, our attorneys help clients and their families with matters of probate, trust administration, wills, power of attorneys, business planning, succession planning, legacy planning, charitable gifting, and other important legal aspects.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.