How Unmarried Couples Can Plan for Caregiving

Without proper legal directives, partners will face serious limitations even if they’ve been each other’s main source of care and support for years. “Many unmarried couples in their 50s and 60s delay estate planning due to a misconception that their long-term partnership affords them similar legal rights as married couples. They believe shared assets and mutual understanding are sufficient, but there are legal vulnerabilities that arise without formal documentation,” says attorney Christopher Migliaccio, cofounder of Warren and Migliaccio LLP.

Key legal documents for protection

Since unmarried couples lack the inherent legal protections and considerations granted by marriage, preparation is crucial to both preserving your well-being in unforeseen emergencies and empowering your partner to effectively manage any future caregiving responsibilities. By putting these affairs in order, you safeguard both yourself and your partner from potential legal complications or messy family disagreements. According to Migliaccio, these key documents can help protect both your relationship and your future:

• Last will and testament: A will directs how your assets will be distributed after your death. “If an unmarried couple were to take just one action, drafting a will would be paramount. Without one, a surviving partner may be excluded from inheriting shared assets, regardless of the relationship’s duration or depth,” advises Migliaccio.
• Revocable living trust: A revocable living trust lets you put assets in a trust that you manage during your life. After you pass away, these assets go directly to your chosen beneficiaries without the need for probate, which can potentially be lengthy and expensive. It is especially useful if you own real estate, particularly multiple properties in more than one state, or have other complex assets. It offers a level of privacy and control that a will alone cannot.
• Durable power of attorney for finances: If you become incapacitated, without this in place, your caregiving partner may not be able to manage your financial affairs. They would lack the legal authority to access accounts, pay bills on your behalf, use your funds for your ongoing care, and manage your health care claims and payments.
• Medical power of attorney: A medical power of attorney, or health care proxy, lets your partner make medical decisions if you’re unable to speak for yourself. Without it, doctors may default to a family member, even one you’re estranged from. It’s important to note that neither a spouse nor a blood relative has automatic legal authority to make these decisions without a valid medical power of attorney. While some doctors may consult them informally out of compassion, this is not legally required and may violate HIPAA privacy laws. Having a medical power of attorney ensures that your partner can act quickly and decisively in a medical emergency, helping to avoid confusion or conflicts with family or medical staff.
• HIPAA release: This allows your partner access to all of your medical records. Due to HIPAA regulations, health care providers may not be able to share your medical details with your caregiver without this authorization, even if your partner needs this information to make the best medical decisions for you.
• Living will: This document, also called an advance directive, communicates to your doctors and loved ones your wishes regarding life-sustaining treatments, specifying whether you consent to or refuse interventions like CPR, ventilators and feeding tubes. These decisions are difficult for a loved one to make, and having a living will in place can spare your partner from having to make such emotionally painful choices.
• POLST form (Physician Orders for Life-Sustaining Treatment): Unlike a living will, which expresses general preferences, this is a medical order signed by a health care provider that dictates immediate end-of-life treatment decisions, such as DNR (Do Not Resuscitate) orders. “I wouldn’t say it’s mandatory for every unmarried couple in their 50s or 60s, but once someone is facing chronic illness or a terminal diagnosis, it becomes essential,” says Migliaccio.
• Cohabitation agreement: A cohabitation agreement is essentially a prenup for those who aren’t married and protects both partners by clearly outlining financial responsibilities, property ownership and what happens if one of the partners dies or the relationship ends.

Beyond the legal documents

There are other key matters for unmarried partners to consider when acting as caregivers.

Start by reviewing and updating your beneficiary designations on all financial accounts, including life insurance policies, pensions and retirement plans like 401(k)s or IRAs. These designations override what’s written in a will, so if they’re outdated or missing, the wrong person could end up with your assets, says Migliaccio.

For major properties, such as your home, consider a joint tenancy with rights of survivorship. This ensures that if one of you passes away, ownership automatically transfers to the other without going through probate, which saves time, money and emotional strain. Marie Fontanella, 85, and Vic Harriman, 83, who have been living together in Fontanella’s condo in Manchester, Connecticut, for more than eight years, have put in writing that if anything should happen to her, he can live in her condo for a year until he finds another place to live. Harriman would be responsible for covering utility expenses, but not taxes.

Forgetta and Caro took a simple but meaningful step to ease their potential future burdens: They registered their car in both names. “If something happens to one of us, the car automatically goes to the other,” Forgetta says. “It’s about removing one more worry before it ever becomes one.”

How to let grown children know about your wishes

Telling your adult children or loved ones that you’ve chosen your unmarried partner as your caregiver can be emotionally delicate. It may stir confusion, concern, or resentment — especially if the child assumed they’d take on that role. The conversation can be harder if your romantic relationship is new or still being accepted. Having an open, thoughtful discussion is key to avoiding misunderstandings and ensuring that your wishes are honored.

“Adult children can contest decisions made by a parent’s partner, especially if they believe undue influence or lack of capacity was involved. While courts often uphold well-executed documents, challenges can lead to prolonged legal battles. Unmarried couples should be prepared for potential disputes by ensuring all documents are current, clearly articulated and legally binding,” says Migliaccio.

Fontanella and Harriman each have adult children from former marriages. They decided to include their grown children and friends in their health care decisions. Fontanella chose her daughter, who is a nurse, to be her health care proxy, while Harriman chose a close friend over his son, who lives in Ireland. “Our families know about our wishes and everything is spelled out in our health care proxies,” Fontanella says.

Here are some tips, provided by Morris, to help the conversation with adult children go smoothly:

• Choose the right time and setting for your conversation. Pick a calm, private moment when your family is most likely to be receptive. Avoid sharing important decisions during the holidays or other emotionally charged occasions.
• Speak with clarity, love and empathy. Be firm in your decision, but acknowledge that it may come as a surprise or even disappointment. Reassure your child that this isn’t about replacing anyone — it’s about making the choice you feel is best for everyone involved.
• Be open about your reasoning. Share the practical factors behind your decision and be transparent about any legal documents you’ve prepared.
• Welcome their questions and emotions. If there’s confusion or pushback, respond with compassion. Allow space for hurt or concern, but gently reaffirm that your decision is final.
• Ensure that everything is documented. Put your wishes in writing, and have all legal documents reviewed by an attorney to prevent misunderstandings down the road.

Where to go for professional advice

Migliaccio advises couples to consult with an estate planning attorney experienced in working with unmarried partners: “Such professionals can navigate the complexities unique to non-marital relationships, ensuring that both partners’ rights and wishes are adequately protected.”

Use online legal directories that let you filter by specialty and experience. Try searching Avvo, Martindale-Hubbell or the National Academy of Elder Law Attorneys. You can find ratings and reviews, while narrowing down your search by credentials, experience and practice areas. Also, never underestimate the power of getting referrals from friends or others who understand or have been in your situation. Without the right legal tools in place, both significant situations and routine tasks like talking to doctors, paying bills, managing insurance and completing forms can become difficult or impossible for your caregiving partner.

“By putting in place these important legal documents,” says Morris, “you help care for your partner so they can help care for you.”