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Published on May 13th, 2013 | by Healthy Gay Lifestyles

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Life Planning: Legal Medical Documents for Same Sex Partners

by Steve Jackson

What do I have to do to see my partner if he’s in the hospital?… It can still be a barrier for unmarried partners to get in to see a partner when he’s in the hospital. It’s even more difficult to get information released on his condition or follow-up care. Another drawback of not being married, I guess, but this is a fact of life. Planning for things like this is important in every gay relationship. There are some answers to this dilemma. So, you and I need to complete advanced health care directives, a durable medical power of attorney and other legal documentation to keep decisions within our hands and the confines of our relationships. Here’s some important information.

An advance health care directive is the primary legal tool for protecting your healthcare wishes if and when you or your partner can’t speak for yourself. The health care directive would apply any time either of you is unable to communicate, whether or not the situation is life threatening, or for however long is necessary. Examples are a patient’s temporary condition after an accident, after a surgery or during a medically induced coma. An advance health care directive can set out your wishes regarding the specific care you/he does and doesn’t want, and it can appoint the other partner to supervise that care or to make decisions for him when he’s unable to do so. An advance health care directive would not override your direct control over your care as long as you/he can still speak for your/himself.

Another type of document, sometimes called a medical power of attorney, power of attorney for health care, patient advocate designation, or something similar, names a specific person to act as the patient’s “agent,” “proxy,” or “attorney-in-fact.” This person (you or your partner) will have legal authority to make sure your wishes are followed and can make all other decisions related to your medical care, including:

  • Consenting to or refusing any medical treatment or diagnostic procedure related to physical or mental health, including artificial nutrition and hydration.
  • Hiring and firing medical providers.
  • Admitting to and discharging from hospitals and long-term care facilities.
  • Accessing to all medical records.
  • Giving directions regarding organ donation.

However, these power-of-attorney documents don’t always include descriptions of what specific medical care you/your partner does and doesn’t want. This leaves room for arguments among family members and doctors, even though the person named in the document has the last word.

In most states, an advance health care directive permits you to accomplish both goals in a single document. In other states, you might need two separate documents.

I’m Not a Lawyer, But… I Played One In a School Play Once

So, first let me tell you that I am not a lawyer, nor have I had any legal training. I am in no way trying to practice law. I have been through these processes as a partner in a same sex relationship and I only speak from personal experience. Most of my preliminary research was done on the internet years ago, although I’ve since researched and discussed these topics many times. There are many more qualified individuals/professionals in the legal field to whom you may want to direct your questions. This article is intended to get you thinking about the legalities that are your rights and those that are not your rights in a same-sex, unmarried partnership or relationship.

Now, when we decided that we wanted to ensure that the other had access to decision making power, access to each other in a medical emergency and visitation rights as next of kin, we visited a lawyer to have these documents drawn up. This is the best way to ensure that your rights are legal. If you are denied access to your partner in a medical situation, you should have legal recourse if you are denied access to be by his bedside, be active in any decisions including Do Not Resuscitate (DNR), or visitation in the event that your partner cannot verbally okay anything.

There is a fee associated with each of these documents if you so choose to get them done by a lawyer, but this again is the best way to go. Call a lawyer and check the going rates, if you’re interested in getting these documents added to your will and other items in your legal portfolio. There may also be a difference depending on the lawyer or law firm that you use, but the end result is to have the access and protection that you and your partner need. To us, the peace of mind was worth the expense.

Do It Yourself?…

If you choose to forego a lawyer, check the internet for the legal forms to do the legal paperwork yourself. Again, I am not qualified to give legal advice, so don’t take this as gospel. I would still consult a lawyer about the process. We each had a DNR, Medical Power of Attorney for Healthcare and a living will designating the other partner as medical decision makers and heir to our vast net worth of clothing, furniture and debt… Just a little humor here because this can get a little morbid. Too many times we have seen friends left out of decisions that were discussed but never documented; kicked out of their homes and stripped of their property because the proper documentation wasn’t official in directing ownership, rights of survivorship and legal decision making power.

So, I digress. If you choose to go the route of doing the documents yourself, you really need to make these documents as legal as possible. Again, consult a lawyer if you are unsure and to get the best legal advice. I can, however, tell you that one way to legalize the process if you do it yourself is to get the document(s) notarized. A Notary Public is the person who would notarize (legally certify that the documents are authentic or real, witness and certify that your signatures are legitimate) any documents that you and your partner have created. Each state has rules and regulations for how a notary public operates. Check this out on the web or check with a courthouse about these rules. You should be able to easily find a notary public near you.

What Should We Do With the Completed Legal Documents?

Keep the original healthcare power of attorney in a safe place that’s easy to find, and give copies to:

  • Each of your regular doctors and ask that it be made part of your permanent medical record.
  • Your partner/decision maker.
  • Your lawyer.
  • Any healthcare facilities that could or will treat you in the event of a medical procedure or emergency.
  • Close family members.

You can also keep a note in your wallet (in case of an emergency) stating that a medical power of attorney exists and provide the contact number of your partner and/or lawyer.

So, take this information and use it as you see fit. Again, I’m not a lawyer; this is not an intent to practice law. I am merely passing on the information that I feel is important for us as gay men to plan for our future, our partner and our personal healthcare decisions. I think it’s worth your attention. It definitely is for us.

_______________________________________________

Stephen Jackson holds a Master of Public Health degree from the University of Nebraska Medical Center. His primary responsibility is as Program Manager for the Ryan White Program, which delivers medication, treatment, education and support services to HIV+ consumers across Nebraska. Stephen also works with men’s health issues. His patient advocacy related to gay men relates to his own searches for gay/gay friendly doctors in the past as well as his research thesis regarding access to healthcare for LGBTQI populations in Nebraska. Stephen can be reached at steve.jackson@nebraska.gov.

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