You have been married for over 25 years, and suddenly your spouse has a serious injury or illness and is no longer able to handle their own medical decision making or financial matters. Overnight your world and your roles have changed. Would you be able to step into their shoes and handle everything for them? What legal documents do you need? Where do you start?

Ideally, a proper estate plan is already in place. A proper plan includes a Will and/or Trust, financial power of attorney, healthcare power of attorney, mental health care power of attorney, and living will. Well-drafted medical directives make the necessary decision-making transitions as smooth as possible. Thorough financial power of attorney and/or Trust will allow you to handle your spouse’s financial matters. These documents demonstrate legal authority to act on behalf of the incapacitated spouse. They need to be signed while your spouse is competent. 

If there is no health care power of attorney in place Arizona law allows you to make your incapacitated spouse’s medical decisions as a surrogate medical decision maker. However, there is no similar law that would allow you to handle your spouse’s financial matters. While you may be able to continue to pay bills from a jointly titled bank account, you would not be able to manage many other matters (e.g., spouse’s interest in real estate, retirement accounts, contracts, etc.). As such, petitioning the probate court for guardianship and conservatorship over the incapacitated spouse may be necessary and may be quite costly. A guardianship is a legal relationship between an individual (“ward”) who, because of incapacity, is unable to take care of his or her own medical decisions, and the person appointed by the court to act as guardian. A conservatorship is the legal relationship between an incapacitated individual and the person appointed by the court to manage the incapacitated person’s property and finances. 

In addition to establishing legal responsibility and authority (whether with powers of attorney or guardianship and conservatorship), there are practical considerations that must be made. First, in a Will, the well spouse should nominate a guardian for the incapacitated spouse; having at least one alternate to the person nominated in the Will is advisable. The well spouse should also review and update his or her estate plan to ensure that in the event of their own death, the surviving incapacitated spouse will be properly provided for, typically with use of a Trust.  The well spouse should also make a list of caregivers, medications, medical history, and likes/dislikes and let those closest to the incapacitated spouse know where this information may be found. It is also advised to have a standing back-up caregiving plan in place in case the caregiver well spouse is suddenly unavailable (e.g., hospitalization, emergency trip, etc.).  

If you have an incapacitated spouse and need guidance, one of our experienced attorneys is able to help. Call our office at 480-922-1010 or e-mail info@bivenslaw.com for an appointment today.