Does a Spouse Automatically Have Medical Power of Attorney?

Posted Feb 4, 2023


In most circumstances, a spouse is not automatically designated as the medical or healthcare power of attorney (POA) for their incapacitated partner. The lack of a formal designation can lead to conflict and confusion during a medical emergency. Every state (and the District of Columbia) has established procedures for naming a healthcare proxy, which may also be called a durable power of attorney for healthcare. In most cases, a proxy recorded in one state will be recognized in another state, although there are exceptions.

How should I designate a healthcare POA?

Each state has specific procedures for formally appointing someone to make medical decisions for you in case you can’t. In some cases, you might have both a general POA and a specific healthcare POA. They might or might not be granted to the same person. For example, perhaps you want your spouse to have the authority to make decisions about your healthcare, but you want your business partner or another trusted associate to handle your financial concerns. In that situation, you would likely have separate power of attorney designations for each.

The American Bar Association developed a standard form accepted in most states, although some have additional requirements, such as attaching an advanced directive or living will. An advanced directive not only designates someone to manage your medical care when you cannot, but it also expresses your wishes regarding certain potential decisions. For example, the advanced directive can detail your preferences about:

  • Mechanical ventilation
  • Tube feeding
  • Resuscitation
  • Pain medication
  •  Response to terminal diagnoses

When does the proxy get to make decisions?

If you become incapacitated, often due to illness or accident, your healthcare proxy assumes the responsibility for making decisions on your behalf. In most scenarios, the healthcare proxy retains the decision-making authority until you pass away or recover the ability to express your wishes and make decisions on your own.

What happens if I don’t have a healthcare proxy?

In everyday situations, the hospital staff will likely seek input from your spouse if you need care. However, things can get sticky. For example, suppose you are estranged from your spouse and trust your adult children to make the right decisions. Without a formal power of attorney or healthcare proxy designation, that won't happen. Similarly, suppose you are a young person, engaged to be married. If you are single, medical professionals will most likely consult your parents, and your partner may have no rights.

Worse, what if urgent medical decisions are pending, and there is conflict over who is responsible and the correct course of action? If you have not expressed a preference for your care and appointed someone to carry out your wishes, you may not get the care you would have chosen for yourself.

Suppose you are married and become incapacitated with your partner following a serious accident. Now you both need medical decisions to be handled by a trusted individual. That's a good reason for having a backup designee.

In extreme cases, a court will decide guardianship for you. They might appoint your spouse, but if there is an objection from another close family member, the proceedings might be contested, delaying and disrupting your care.

You can preemptively avoid much potential drama and conflict by expressing your preferences for medical care and appointing a healthcare power of attorney to handle any decision in case you cannot act on your own behalf.

This material is for general information and educational purposes only. Information is based on data gathered from what we believe are reliable sources. It is not guaranteed as to accuracy, does not purport to be complete and is not intended to be used as a primary basis for investment decisions. It should also not be construed as advice meeting the particular investment needs of any investor.

Realized does not provide tax or legal advice. This material is not a substitute for seeking the advice of a qualified professional for your individual situation.

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