As an estate planning and domestic relations attorney, from time to time, I am asked whether there is a way to ensure that an individual in a non-marital cohabiting relationship can make health care decisions for his or her partner. The answer is yes. By executing a legally valid Durable Health Care Power of Attorney, or an Advance Medical Directive with a provision designating an agent to make health care decisions, a non-marital cohabiting partner may be given the authority to make health care decisions for the other partner. Under Virginia law, an individual can name any adult to make his or her health care decisions, so long as the document in which the designation is made is legally sufficient.
But what happens if an injured cohabiting partner does not have one of these documents? As with any other adult, the individual’s health care decisions will then be made by his or her default agent as set forth in Section 54.1-2986 of the Code of Virginia. While Section 54.1-2986 of the Code of Virginia does refer to several blood relatives or relatives by marriage such as spouses, children, parents, and siblings, it does not refer to cohabiting partners and probably will not for quite some time, if ever.
