A sad story appears in a recent issue of The Parkersburg News and Sentinel, “Legal-Ease: ‘How things might have been.’” It explains what happens to a couple who had lived together for three decades but never planned for each other’s illness or death.
When Bill became ill, his overbearing brother commandeered the hospital room and refused to let Bill’s companion of thirty years, Denise, visit. When Bill died, the same brother barred Denise from the funeral home. Denise was left out of Bill’s obituary and made to leave the home she and Bill had lived in for many years. The brother cleaned out the entire house. He also took the couple’s beloved dog.
Bill’s brother was well within his legal rights to do all of these things, since the couple had never done any estate planning to protect each other. There are many things that they could have done to protect each other.
Bill and Denise should have created and executed medical powers of attorney, naming each other to make medical decisions when they could not make their own decisions. This document would have given Denise the legal power to be in Bill’s hospital room and talk to his physicians. It would also have ensured Denise’s ability to visit Bill and arrange care for him either in a nursing home or at home.
They could have also used the Medical Power of Attorney to nominate each other to be appointed by a court as a guardian if ever needed, avoiding Bill’s brother’s taking control of care by a court order.
If the couple had created Living Wills stating their choices for end-of-life care, each could have made sure they knew what the other wanted and ensured their wishes were followed. For example, a Do Not Resuscitate (DNR) order is used to prevent healthcare providers from performing CPR on patients if they have a heart attack while incapacitated. CPR can leave patients with broken ribs and punctured lungs, and some elderly patients or those near the end of life often choose not to have CPR. Without a DNR order, healthcare providers or emergency responders must, by law, perform CPR.
At the very least, Bill and Denise should have each signed a Durable Power of Attorney, naming each other as their representative for all legal and financial matters. This would have allowed Denise to take care of Bill’s financial and business matters. Bill could have also added a provision in the POA stating that he did not want his brother to be involved.
For unmarried couples, trusts are used to provide protection for the surviving partner. For instance, if the house had been put into a trust with Denise as a trustee, Bill’s brother would not have ownership of the home, and Denise would not be unhoused.
Bill and Denise could have named each other as beneficiaries on a variety of financial accounts, including life insurance, IRA accounts and investments. Upon Bill’s death, these assets would have been paid directly to Denise.
If Bill and Denise had used wills to name each other as executors as well as heirs, they could have left all their worldly possessions to each other and served as administrators of each other’s estate. While a will is not as bullet-proof as a trust, having a will could have protected Denise from being left out in the cold.
Regardless of marital status, couples who want to take care of each other throughout their lives should meet with an estate planning attorney to protect each other. Death and incapacity aren’t limited to married couples, after all.
Reference: The Parkersburg News and Sentinel (Jan. 8, 2025) “Legal-Ease: ‘How things might have been’”