why should married couples not have the same power of attorney

Married couples usually choose their life partners as the power of attorney (POA) agents, but that’s not always the case. When a person gives the authority to act on their behalf to someone other than their spouse, it can create conflicts and lead to more serious disputes later.

Full Answer

Do married couples need power of attorney?

So before we reach the question of whether married couples need powers of attorney, let’s review what these documents do. What is a power of attorney? Generally speaking, a power of attorney is a signed document in which you give someone else the authority to act for you or to make decisions on your behalf.

What happens if you don’t have a power of attorney?

If you become incapacitated and you haven’t issued a power of attorney, your spouse will need to apply for guardianship.

Does a spouse automatically have medical power of attorney in Arizona?

Does A Spouse Automatically Have Medical Power Of Attorney in Arizona? Does A Spouse Automatically Have Power Of Attorney? While spouses inherently have certain rights and privileges to access joint property and make important medical decisions on their spouse’s behalf, there are some limitations to those rights.

What is a power of attorney and do I need one?

A power of attorney is a legal document through which you authorize an agent (e.g., your spouse) to sign your name if it is inconvenient for you to do so or if you become incapacitated. The power of attorney is incredibly important if you become incapacitated through a medical condition, car accident, fall, or dementia.

What is a Statutory Durable Power of Attorney?

A Statutory Durable Power of Attorney (aka Financial Power of Attorney) is used to appoint someone you know and trust as your “agent” to make financial decisions for you if you are no longer able to. As with a Medical POA, you may also appoint alternate and/or co-agents to make financial decisions for you if the need arises.

Can you have two co-agents?

In addition, you can appoint two or more people as co-agents to serve at the same time. Co-agents can be useful if, for example, you have two children who live in different locations away from you since either could show up to the hospital to make medical decisions on your behalf. However, you should think carefully before appointing co-agents. Once appointed, co-agents can act independently of one another. As you can imagine, this can complicate things when you have two co-agents who disagree on a particular medical treatment! As a result, you should make sure your co-agents generally get along and work well together beforehand. Not doing so could lead to unintended consequences!

Do you have to appoint the same person to act under a POA?

As with a Medical POA, you may also appoint alternate and/or co-agents to make financial decisions for you if the need arises. You do not have to appoint the same person (or people) to act under this POA that you designated for your medical POA (but you can!).

Can I have two powers of attorney?

The short answer is, yes. Of course, I guess I should first start off by clarifying that there are two different powers of attorney, both of which you should consider having in place.

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What happens if you are incapacitated?

If you become incapacitated, state law will determine who in your family has the power to make medical decisions for you, even if you are estranged from them. Of course, even without a medical power of attorney, your spouse will be able to make medical decisions for you. But what if your spouse can’t for some reason? A good medical power of attorney will grant the same rights to other trusted people if your spouse cannot take care of you – and those people do not have to be relatives. Perhaps your best friend is a nurse or doctor or works at NIH. A person like that would make a great choice as a healthcare agent, if he or she is willing. (You do need to ask first!) Naming your own decision-maker can give you peace of mind that your wishes will be respected versus the unknown consequences of that role going to a faraway family member who doesn’t approve of your “lifestyle.”

What is a power of attorney?

A power of attorney is a legal document granting powers to someone you trust to act in your place when you are not available or no longer capable of doing so. This person is called an agent or attorney in fact. Broadly speaking, there are two types of power of attorney: financial powers of attorney and medical powers of attorney. An agent appointed under a financial power attorney acts on your behalf with respect to financial matters. A medical power of attorney allows you to select the person who will make medical and care decisions for you when you lack the ability to give informed consent.

Why are powers of attorney important?

However, they are among the most important to ensure that your needs are properly met if you become incapacitated.

Can a spouse use a joint account?

With respect to financial issues, a spouse may be able to access and use funds held in jointly owned accounts to a certain extent , such as to pay bills. However, their rights are significantly limited in terms of selling or mortgaging property spouses own together. For instance, one spouse could not sell or refinance a home they own as joint tenants, nor sell vehicles owned jointly. Further, one spouse cannot access, control, or sell assets owned solely by the other spouse. This can cause significant issues when one spouse is incapacitated, and the other spouse needs maximum flexibility in order to provide for the care of both.

Who can make medical decisions?

In these situations, your spouse, family members and close friends (the “interested persons”) are supposed to come to a consensus about which of them should be selected as proxy decision-maker. If they cannot come to an agreement, or if any of the interested persons disagrees with the decision or the selection of proxy-decision maker, any of the interested persons make seek judicial appointment of a guardian. Thereafter, your court appointed guardian would make medical decisions on your behalf. In limited circumstances, such as when no interested persons can be found or none are willing to serve as proxy, your physician may designate another willing physician to make health care treatment decisions on your behalf.

Do you need a power of attorney if you are married?

Many people mistakenly believe that there is no need to create powers of attorney if they are married. They may believe that they are protected if they and their spouse are joint owners of property, or that their spouse will automatically be able to make medical and financial decisions for them when they cannot. However, this is not always the case.

What happens if your spouse is your primary attorney in fact?

If your spouse is your primary attorney-in-fact, it’s important to consider the possibility that you and your spouse could both become incapacitated in an accident. If that happens, who will step in to handle your affairs? If you have minor children, who will care for them?

What happens if you don't have a power of attorney?

If you become incapacitated and you haven’t issued a power of attorney, your spouse will need to apply for guardianship. To do that, they’ll need to obtain a certificate of incapacitation from your physician, submit a petition for guardianship to the court, serve a Notice of Hearing to all of the interested parties, ...

What documents are needed to prepare for unexpected contingencies?

To prepare for unexpected contingencies, it’s important to plan ahead with the proper estate planning documents, including a durable power of attorney and an advance healthcare directive.

What is a power of attorney?

As the name implies, a healthcare power of attorney grants an agent the authority to make important medical decisions for the issuer if they become incapacitated. It’s important to note that a spouse inherently has the right to make medical decisions for their spouse, but healthcare privacy laws ( HIPAA) may restrict a spouse from accessing their spouse’s medical records.

When is a conservatorship needed?

Conservatorships may be useful when the incapacitated adult has sufficient mental capacity to make healthcare and living-situation decisions but lacks the capacity to responsibly manage their finances. The process for granting a conservatorship is the same as granting guardianship, so drafting a power of attorney is still the better option. Learn more from our Guardianships & Conversvatorships Law Practice.

What is advance directive?

An advance healthcare directive (also known as a living will) is a legally binding document that outlines your preferences for medical treatment. If you become incapacitated and cannot communicate important medical decisions, your doctors will consult your advance directive to determine the best course of action.

What are the topics covered in advance directives?

Some of the topics that are commonly addressed in an advance directive include palliative care (treatment for pain and suffering), resuscitation (such as a do-not-resuscitate order), artificial life support, and organ donation.

Why is a power of attorney important?

The power of attorney is incredibly important if you become incapacitated through a medical condition, car accident, fall, or dementia. If your spouse doesn’t have a power of attorney, authorizing him or her to step into your shoes and act on your behalf, the court will intervene.

Why is conservatorship so expensive?

The conservatorship process is expensive because there are court, attorney, accounting and medical witness fees. Contested conservatorships can cost thousands of dollars.

What to do if you don't have a power of attorney?

If you are married and don’t have an up-to-date power of attorney, consult with an experienced, qualified estate planning attorney and get one in place. Also, ask about the medical power of attorney, also known as an advance health care directive, so that your spouse is authorized to make medical decisions on your behalf.

Do you need a power of attorney if you are married?

This means, even if you’re married, you need a power of attorney to authorize you and your spouse to sign each other’s names. A power of attorney is a legal document through which you authorize an agent (e.g., your spouse) to sign your name if it is inconvenient for you to do so or if you become incapacitated.

Can a spouse be named as conservator of assets?

When the court intervenes, it may freeze your assets (even those assets you own jointly with your spouse) and your spouse may have to seek to be named as conservator of your assets. The court doesn’t always name a family member as conservator, especially if the spouse is aged.

Can you sign your spouse's name on a birthday card?

According to the old joke, “If he actually signed his name, the bank wouldn’t recognize it.”. However, except for the birthday card forging, signing your spouse’s name is illegal. This means, even if you’re married, you need a power ...

Samuel John Edmunds

I highly recommend two separate attorneys to avoid conflicts and allow for collaboration and a more strategic approach. I advise consulting with an attorney as soon as possible to discuss the facts. Avvo has many qualified criminal defense attorneys to consult with at no charge.

Anjie M. Flowers

Simply getting married at this juncture won't necessarily affect the evidence that can come into a trial. ONE of you should approach an attorney about the situation and present the circumstances, and at that juncture, a lawyer may make some decisions or advise you accordingly.

Alex De Marco

I suggest you read the Minnesota Rules of Professional Conduct for yourself: http://lprb.mncourts.gov/rules/Pages/MRPC.aspx You should confer with an attorney privately and confidentially at this time so she/he can assist you and advise you.

Tricia Dwyer

I changed the practice area for your question to "Criminal Defense." You will get many more appropriate responses under that practice area. You should definitely discuss this with a criminal defense attorney privately. Best of luck to you!

Sara Marie Grant Rojas

Yes, but it is not advisable. There is a conflict of interest and, as a result, for dual representation, a waiver of that conflict must occur. I know very few lawyers who would take on a case for two defendants were the conflict is so clear cut. Being married does not change the conflict of interest.