Q. My partner and I have been in a Non Marital relationship for approximately 10 years. Unfortunately, she is showing signs of early dementia, and her children from her former marriage are trying to take over her financial and personal life in a manner which is not in her best interest. We do not have anything formal recognizing our relationship, nor even any basic estate planning documents. Do you have any thoughts as to how we can legally empower each other to manage the other’s affairs when the time comes?
A. Unfortunately, your situation is all too common. Whether her children’s behavior is motivated by concern for their parent, or by their perceived need to protect their own inheritance, the situation can definitely complicate your lives and lead to unintended consequences. If you have not married, not filed formal documents to become Registered Domestic Partners (“RDP’s”), nor created an estate plan recognizing your relationship, then in the eyes of the law neither of you would have the legal right to manage the personal or financial affairs of the other.
Some of the situations that could arise in this circumstance might include the following:
1) When she becomes incapable of making decisions for herself, her children, rather than you, would have legal standing to petition the court to become her conservators, with the associated legal right to control her care, manage her finances, determine where she lives, and even bar you from visiting if they were so inclined. Further, if you now live in her home, they might even force you to vacate;
2) Unless you were designated as a signer on any of her bank or brokerage accounts, you would have no legal authority to draw upon her funds to pay her bills;
3) Upon her demise, you would have no legal right to become her estate administrator in the event a probate proceeding were necessary, nor any standing to be treated as an heir or beneficiary of her estate.
In short, if your relationship is not formalized and if you have not created an estate plan for yourselves, the law would treat you as merely her friend, rather than as a spouse or family member. As a result, you would have little if any legal rights.
One remedy for this situation is to create an estate plan which recognizes your relationship and, to the extent each of you so desires, designates the other as the agent, executor, successor trustee, and/or beneficiary of each other’s estates.
However, merely because your plan may recognize each other in some fashion does not mean that her children, nor yours if you have any, would need to be entirely left out. Example: If she owns the home you live in, she could give you the legal right, if you are the survivor, to remain in the home rent-free for the rest of your life with the home going to her children only after your demise.
Since you indicate your partner is showing signs of early dementia, it will be important to first establish her mental capacity to sign legal documents. In this regard, a letter from her physician so affirming will be helpful. The key is to start planning now and place a high priority on completing your plan soon.