Sudden Wealth Blog

Do Spouses Automatically Have Power of Attorney?

November 17, 2022
5:52 pm

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 in that case?

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 Your Spouse Doesn’t Have Legal Documents In Place?

If you and your spouse don’t have legal documents in place, and you need to make a healthcare or financial decision, then you may have to go to court. The court could 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.)

Do You Automatically Have The Ability to Sign For Your Spouse?

No. 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.

Now let’s talk more about what happens if your spouse doesn’t have a Health Care Power of Attorney naming you as the agent.

Do Spouses Automatically Have Power of Attorney For Health Care Matters?

No. But 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. Oftentimes the medical staff will ask you as the spouse for permission.

That being said … if there’s a disagreement between you and other family members, then the hospital will probably do nothing. The hospital doesn’t want to get sued for making the wrong decision. In that case, assuming your spouse is in Arizona, you will need to ask the court to appoint you as guardian. Other states use different words for this.

The Process of Becoming Health Care Guardian For Your Spouse.

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 for Financial Matters?

The answer is no. If you and your spouse jointly own an account, then you can probably use and manage that account. However, there are many times that a spouse cannot sign for the other. For instance, signing real estate documents, signing tax returns, or signing a check.

Joint Ownership Doesn’t Solve Everything.

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 There Is No Power of Attorney, You Need to Go To Court.

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 court could appoint family member or even a stranger 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 court terminates the guardianship, 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 court terminates 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 court doesn’t end up appointing a stranger or someone you don’t want.

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.

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.