One of the privileges most taken for granted by married couples is the ability to visit their spouses in the hospital and to make medical decisions on their behalf, when they cannot do so for themselves. Luckily, with the new Supreme Court decision making same sex marriages legal in all states, same sex spouses can now enjoy these privileges. But for those that are not legally married, the issue of same sex couples and medical decisions can still be a concern. The reality is, if you want your same sex partner to make medical decisions on your behalf, you must have a plan.
The power to make medical decisions
State and federal laws determine who has the authority to make medical decisions for someone else. The majority of these laws provide that authority only to couples who are legally married. However, there are several estate planning tools designed to provide authorization to the individual you choose, to make medical decisions for you, as needed. These legal tools are known as advance directives.
What is the legal definition of an advance directive?
An Advance Directive is simply a legal document describing all of your choices regarding medical treatment. It also serves to designate an individual to make medical decisions on your behalf, if you ever become unable to do so yourself. Some common examples of advance directives include living wills and durable powers of attorney for health care. Each one of these legal documents has a different purpose and they are both easy to customize.
A durable power of attorney for health care
A durable power of attorney for health care is a very valuable advance directive that can be used to state your wishes regarding your health care needs. You can designate the individual you choose to make decisions regarding your medical care as well, if you become incapacitated. A durable power of attorney only takes effect when you become unable to make those decisions on your own, in other words, once you have been certified as incapacitated.
The benefits to same sex partners
When properly drafted, a durable power of attorney for health care can allow your same sex partner access to you while in the hospital. Health care providers and other staff will not be able to deny them access, with this document in place. The durable power of attorney will also allow your same sex partner to make your medical decisions. In essence, your advance directive will provide the best evidence of your wishes regarding medical care, and it must be honored.
How a living will works
A living will is another type of advance directive. It provides notification to all health care professionals, as well as your family members, the extent of life saving measures (if any) you choose to receive in certain circumstances. Living wills typically come into play when you are considered brain dead or in a coma, or if you have an incurable illness. These measures will only be followed if you no longer have the capacity to speak on your own behalf. Essentially, the purpose of a living will is to provide the opportunity to make your end of life choices while you still have the ability to do so.
If you have questions regarding advance directives, or any other LGBTQ estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.