It is best not to assume that your spouse will have total control of your finances or be able to make medical decisions for you if you become incapacitated.
Financial: If you are married, your spouse does have some authority over property you own together — for example, to pay bills from a joint bank account or sell stock in a joint brokerage account. There are significant limits, however, on your spouse’s right to sell property owned by both of you. For example, in most states, both spouses must agree to the sale of co-owned real estate or cars. Because an incapacitated spouse can’t consent to such a sale, the other spouse’s hands are tied. And when it comes to property that belongs only to you, your spouse has no legal authority without a durable power of attorney (think business interests, retirement accounts and life insurance).
Medical: Many of my clients are also surprised to learn that spouses are sometimes limited to act on each others behalf to make medical decisions as well.
Recently, the law expanded the scope of exclusivity of this right to the privacy realm by limiting the sharing of patient information and records. Thus a patient’s spouse, domestic partner, and other family members face increasing obstacles when they seek information from the patient’s records—even though some healthcare providers, perhaps motivated by compassion, are disregarding the legal restrictions. Nevertheless, spouses, in particular, should be very clear about their ability to make healthcare decisions on behalf of their partners. Spouses often assume that when their husband or wife becomes incapacitated and unable to make medical decisions, they have an automatic right to step into the shoes of their spouse. A patient’s incapacity his or her inability to understand the nature and consequences of a decision or communicate a decision—may be temporary or permanent. Under either circumstance, the patient’s spouse is not statutorily authorized to be first in line to assume the power to make healthcare decisions for the incapacitated patient.
A healthcare directive or living will states what medical care you do or do not wish to receive if you should ever become incapacitated and unable to communicate directly with the doctor. If you want to designate a person to supervise your care, you can do so through a document called a durable power of attorney for healthcare.
A Hippa waiver is a legal document in the United States that allows doctors to communicate with specifically named individuals about someone’s health history and current health situation. Without such authorization, doctors are legally barred from discussing anything about a patient with third parties, including family members. Such forms are necessary in a variety of settings and patients can control how much information will be released and who will be able to access health information.
If I can help answer any questions please feel free to give me a call.
This reminds me how the HIPAA form becomes very limiting at the point when your children turn 18. They may still be seeing the same pediatrician, same dentist, same providers, etc, and when you try to contact them on behalf of your child (who may be halfway through their senior year in high school, or out of the country studying abroad in college), they won’t talk to you unless your child has signed a release, stating that they can talk to you about your child’s health status/records. In reverse, when you have questions about your parents’ care, and you want to ask their doctors…same thing. A difficult conversation to have, but it would be so nice to have parents provide communication access with their medical providers so that you could discuss questions with their doctors as well.