Incapacity Planning: Why It Matters Even More for Unmarried Couples and Blended Families

Most people don’t like to think about what would happen if they became seriously ill or injured and couldn’t speak for themselves. But planning for incapacity isn’t just about being cautious — it’s about protecting the people you love and making sure your wishes are respected when you’re unable to make decisions on your own.

Too often, families assume “we’ll figure it out” — and then, when the unthinkable happens, they realize they can’t. That’s when the law, rather than love, starts making the decisions. And the results can be devastating.

When the Law Doesn’t Recognize the Relationship

Imagine a couple, together for 15 years, who share a home and children but never signed any legal documents. One day, one partner suffers a sudden medical emergency and becomes unconscious. When the other partner arrives at the hospital, they learn that they have no legal authority to make medical decisions — because they aren’t married and have no health care proxy in place. Instead, the hospital must contact the patient’s next of kin, such as an estranged relative. In an instant, someone outside the relationship gains full decision-making power, while the long-term partner is left waiting helplessly for updates.

This type of situation is entirely preventable. The law doesn’t automatically recognize long-term relationships if there’s no marriage or legal documentation — and even marriage doesn’t always guarantee authority to act in a crisis. Hospitals and financial institutions look for formal legal authority, usually in the form of a health care proxy, durable power of attorney, or court-appointed guardianship. Without these, even a devoted partner or spouse may have no legal right to make decisions about medical treatment, finances, or long-term care.

Even Marriage Has Limits

Many couples assume that being married automatically grants decision-making power. In reality, that’s not true in either New York or New Jersey. If one spouse becomes incapacitated without the right legal documents in place, the other may still have to go through a guardianship proceeding to gain access to medical records, authorize care, or handle financial matters. Hospitals might share information as a courtesy, but courtesy isn’t legal authority — and without it, a spouse can quickly find themselves unable to act when it matters most.

Complications in Blended Families

Consider a common blended-family scenario. A widowed parent remarries later in life and shares a home with a new partner. When that parent develops dementia, adult children from the prior marriage and the current partner may disagree about medical care or living arrangements. Without clear legal documents, the children may take control by default, leaving the partner excluded — sometimes even forcing them out of a shared home if property and titles were never updated. These conflicts are emotionally painful and legally complex, but they can often be avoided with proper planning and documentation.

What You Can Do to Protect Each Other

Planning ahead can prevent these painful outcomes. Every couple — married or unmarried — and every family with children from prior relationships should have a legal structure in place to deal with incapacity. In both New York and New Jersey, these documents must meet specific execution requirements to be enforceable, such as proper witnessing, notarization, and statutory language. Here’s what to include:

Health Care Proxy

This document allows you to name a person — your health care agent — to make medical choices if you can’t speak for yourself. It’s typically called a Health Care Proxy or Durable Power of Attorney for Health Care. Without one, state law may prioritize relatives in an order that excludes your partner or spouse. Having this document ensures your chosen person is legally recognized and empowered to carry out your wishes.

Execution matters: New York requires your proxy to be signed and witnessed by two adults. In New Jersey, the form must also be signed and witnessed or notarized to be valid. These formalities are what give your loved ones standing when hospitals or nursing homes demand proof of authority.

Durable Power of Attorney

This document is essential for finances. A Durable Power of Attorney allows someone you trust to manage accounts, investments, insurance, and property matters if you become incapacitated. In New York, it must comply with the state’s statutory short form and be properly signed, witnessed, and notarized. In New Jersey, it must include language stating that it remains effective after incapacity — otherwise, it terminates precisely when you need it most.

Without one, even a spouse or partner may have to petition the court for guardianship before being allowed to handle your affairs — a slow, expensive process at a critical time.

HIPAA Authorization

Medical privacy laws (HIPAA) protect your information — but can also block access for the very people who should be helping. A HIPAA Authorization allows designated individuals to receive medical information and communicate directly with your providers. Some health care proxies include this language, but a standalone authorization avoids delays when multiple institutions are involved.

Living Will (Advance Directive)

A Living Will lets you outline your preferences for life-sustaining treatment — such as whether to use artificial nutrition or ventilation in a terminal condition. In New Jersey, this is called an Instruction Directive; in New York, it’s usually included in the Health Care Proxy or as a separate document. Clear written instructions spare your family from painful uncertainty during emotional times.

Revocable Living Trust

Incapacity isn’t only a medical issue — it’s also financial. A Revocable Living Trust allows you to name a successor trustee to manage assets if you can no longer do so yourself. For blended families, this is particularly useful. It enables you to provide for a current partner while protecting inheritances for children from a prior marriage. Because a trust can take effect immediately upon incapacity, it helps avoid court involvement and family disputes — but only if it’s properly funded with your assets retitled into the trust.

When the Unexpected Happens

Incapacity can strike at any age. For example, imagine a man in his forties who is struck by a car while jogging. His long-term partner of eight years suddenly finds herself unable to access his insurance information or speak with doctors because she isn’t legally authorized. By the time the court grants a guardianship order, crucial medical and financial decisions have already been made by others. These situations are tragic — and entirely preventable.

The difference between chaos and calm, between heartbreak and peace of mind, often comes down to whether a few simple documents were signed in time.

Don’t Leave Your Loved Ones Vulnerable

It’s hard to talk about these scenarios. But it’s much harder to live through them unprepared. When we work with clients — especially unmarried couples or blended families — we emphasize the importance of incapacity planning early and often. It’s not about expecting the worst; it’s about giving your loved ones the ability to protect you when you can’t protect yourself.

Properly executed documents — a health care proxy or proxy directive, a durable power of attorney, a HIPAA release, and, where appropriate, a living trust — ensure that the people you trust most are legally empowered to act for you. Without them, even the best-intentioned families can find themselves locked out, arguing, or forced into court just to do what’s right.

Incapacity planning is one of the most compassionate gifts you can give. It says to the people you love: “If something happens, you won’t be left guessing. You’ll know what I want, and you’ll have the authority to make it happen.”

If you’re in an unmarried partnership or part of a blended family, have an honest conversation about these issues — and then take the next step. Get the right documents in place. Laws differ by state, and there might be specific statutory forms and formalities that must be followed. It’s very important to consult an attorney licensed in your state.

Disclaimer: The stories and examples in this article are fictional and provided solely for illustrative purposes. They do not depict actual clients or cases. This article is for informational purposes only and does not constitute legal advice. Readers should consult an attorney licensed in their state for guidance regarding their specific situation.