Does a spouse automatically get POA for health decisions and marriage?

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Does a spouse automatically get POA for health decisions and marriage?

My husband had a durable POA with his mother having control of any emergency health care decisions before we were married. We have now been married for 7 years. His mom just died and now he wants another one written up. Don’t I automatically have the right to make those decisions since we are married? With the POA he had was his mother the one that would have made those decisions instead of me? If he makes a new one and I am not the person he names, what are my rights? I do not understand because I thought that since we are married, I had that right automatically.

Asked on February 15, 2011 under Family Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Marriage does indeed permit a party to make medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment. But - and this is a big but - it does not mean that your spouse can not freely give that right to someone else if they are in the right frame of mind to do so (that means that they are not in any way mentally impaired at the time they execute the document in question).  So yes, if he did not revoke the POA and his Mother was still alive she would have had the right to make the decisions regarding his medical treatment over you.  You could have tried to make the argument that your marriage voided the POA but I doubt it would have flown very high. He could have chosen to revoke it and he did not.  If he does execute another POA and it is not you what you need to know is that the POA can not make any decisions that would adversely effect you as his wife, such as transferring a marital asset.  I would seek some help here from an estate planner.  Good luck. 


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