Decisions, Decisions: Can your spouse make them for you if you lack capacity?

AvatarHeather Collier, Principal

Too often couples find themselves in a situation where due to age, illness, or accident, one spouse no longer has the ability to make decisions or handle life’s responsibilities – in legal terms, that spouse lacks “capacity” – and there is no plan in place.

What happens then? Can your spouse make decisions for you simply because they are your spouse? If not, are they able to obtain authority to make decisions on your behalf even if you are already incapacitated?

My colleague and fellow guardianship practitioner, Jenica E. Cassidy, associate attorney at Lerch, Early & Brewer, joins us as a guest author on this post to answer these questions:  

Can my spouse make decisions for me if I lose capacity just because they are my spouse?

If you become incapacitated, your spouse does not automatically have authority to make all of your decisions and handle your affairs. This can have far-reaching implications, ranging from accessing your bank account and paying your bills to speaking with doctors and consenting to medical procedures. If you don’t already have a power of attorney and an advance healthcare directive in place, your spouse may have no other option but to seek guardianship over you.

What is guardianship?

Guardianship is a legal procedure where a court appoints guardian for a person who has been determined to lack capacity to make and communicate responsible decisions for themselves and handle their personal affairs.

The guardian can be appointed to handle financial matters or healthcare and personal matters, or both. The guardian essentially steps into the shoes of the incapacitated person and has control over all aspects of the person’s life. Because of this, the court takes guardianship very seriously. A person seeking guardianship over another must file a detailed petition along with medical certifications verifying the incapacity. They must also provide notice to people close to the incapacitated person. The court will appoint an attorney to represent the incapacitated person and will hold a hearing before appointing a guardian. If anyone objects to the guardianship, the contested matter could proceed to a jury trial.

Suffice it to say, the guardianship process can be emotionally taxing, financially burdensome, and may carry on for many months. On top of that, it requires disclosing deeply personal information to a public record where a judge or jury will make the ultimate decision regarding who has control over your affairs.

What can I do now to make sure I have control over who makes decisions for me if I am not able to make them for myself?

It’s best to avoid guardianship if you can. It’s meant to be a matter of last resort after all other options have been exhausted. The best way to do this is to plan ahead. Prepare the appropriate estate planning documents. Name your spouse or a trusted individual to make decisions for you and handle your affairs should you lose the ability to do so on your own.

What type of lawyer do I look for to help me with these issues?

If you are planning ahead, see an estate planning lawyer to help you prepare the appropriate estate planning documents, including powers of attorney and advance medical directives, designating who has authority to make decisions for you in the event of certain circumstances.

If you are trying to pursue a guardianship over a loved one, see a family law lawyer or elder law lawyer who handles guardianship matters.

For more information, contact family law attorney Heather Collier at hscollier@lerchearly.com or elder law attorney Jenica Cassidy at jecassidy@lerchearly.com.

Casey Florance Admitted to Fellowship in the American Academy of Matrimonial Lawyers

AvatarDonna E. Van Scoy, Principal

Divorce attorney Casey Florance has been admitted to fellowship in the American Academy of Matrimonial Lawyers (AAML).

One of only 35 Fellows throughout Maryland, Casey is now among those generally recognized by lawyers and judges as preeminent family law practitioners with the highest level of knowledge, skill, and integrity.

For more information, see the AAML website: https://aaml.org/page/WhyAAML.

Casey Florance is a family law and divorce attorney who represents clients in all aspects of family law, including separation, divorce, custody, property, support, post-judgment issues, and domestic violence matters in Maryland.