It is easy for heterosexual married couples to take for granted many of their rights and privileges in our country. For example, there is no question that a husband can visit his wife in the hospital and make decisions regarding her medical care, if required. However, these same rights are not available to all gay couples. In 2014, only 32 states and the District of Columbia have legalized gay marriage. California joined this number in June of 2013. However, there are still obstacles to be overcome, including medical decision making for gay couples.
New Legislation in New York Gives Medical Decision Making Authority to Same-Sex Partners
Although same-sex couples in New York still do not have the right to legally marry in the state of New York, there is new legislation that will go a long way toward providing same-sex couples the same rights relating to three very common situations. This new law deals with important end-of-life decisions that, until now, have always been reserved for spouses and blood relatives.
The Family Health Care Decisions Act remained stalled in the state legislature for, believe it or not, 17 years. This new law will place a same-sex partner ahead of a surviving child or parent, when it comes to making decisions regarding hospital visitation, medical decision-making and the disposition of a partner’s remains. This is monumental in New York, one of just two remaining states that required a health care proxy, even for a spouse or family member, to make health care decisions for someone else. Although this is good news in the health care arena, there are still many hurdles that same-sex couples face on a daily basis.
Establishing the power to make medical decisions for your partner
Unfortunately, the LGBTQ community continues to struggle with numerous legal challenges, as the perceptions of same-sex relationships continue to evolve in each state, and in the country as a whole. California does not, at this time, have a similar law in place, as the one in New York. State and federal laws dictate who has the authority to make health care decisions for someone else, if they become unable to do so themselves. The majority of these laws apply to, and often favor, couples who are legally married. However, there are several estate planning tools that can be used to bestow the authority to make medical decisions, on behalf of a same-sex partner. These tools are called advanced directives.
A durable power of attorney for health care
A durable power of attorney for health care is an important legal document that conveys to the person you choose the power to make decisions concerning your medical care and treatment. The document takes effect in the event you are no longer able to make your own decisions due to incapacity. A well-drafted durable power of attorney will prevent any hospital or health care provider from denying your partner the ability to make decisions on your behalf. Instead, your wishes are expressed in a written document, which is always the best evidence of your intent.
If you have questions regarding advanced health care directives for same-sex couples, or any other LGBTQ planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.