Who has the power to make decisions on your behalf?

An increasingly common misconception I have been encountering as of late is the notion that spouses are entitled to make health care decisions on each other’s behalf. This entitlement supposedly arises as a result of marriage. Unfortunately, this is simply not true.

The act governing who can make health care decisions on behalf of an incapable person is the Substitute Decisions Act (the “SDA”). There are no provisions in the SDA which automatically entitle spouses to make such decisions on each other’s behalf. Accordingly, if your spouse were to become incapable, you would not be able to make decisions on their behalf without first being appointed as their guardian by the court.

Court appointments are time consuming and expensive to obtain. The process is very technical and contains many potential traps and pitfalls. It can be avoided if you and your spouse obtain powers of attorney naming each other as your respective attorneys. If you have a power of attorney naming your spouse as attorney and you subsequently become incapable, your spouse will be able to make health care decisions on your behalf – no court appointment needed.