Medical Powers Of Attorney For Same-Sex Partners

Lawyers often recommend a medical power of attorney (sometimes also known as a Durable Medical Power of Attorney, Designation or Health Care Surrogate, or Advance Directive for Medical Care) as part of an individual’s estate plan. A medical power of attorney provides a method by which an individual makes known his or her wishes with regard to medical care, in the event that the individual is unable to make medical decisions for himself or herself.

Under the law of many states, assumptions are made regarding medical care and medical decisions for persons without a medical power of attorney. For example, in many states the spouse of an individual is the person who holds the primary authority to make medical decisions on behalf of that individual. If there is no spouse, then “immediate family,” as defined specifically under state law, have the primary decision-making authority. Immediate family normally includes parents, children and siblings (the order of which can vary by state).

What has become perfectly clear, however, is that unless a same-sex couple lives in a state where their rights are specifically protected (such as registered domestic partners under California law, or same-sex spouses in one of the states that presently recognize same-sex marriages), a partner of an individual with a serious medical condition could be entirely without rights under the law. For example, same-sex partners are not recognized as spouses in most states (even if legally married under the laws of another state), and are not included in the definition of “immediate family.” The lack of recognition of the rights of same-sex partners can have devastating results: partners can be denied the right to make medical decisions for a long-term companion or to visit the partner in a hospital emergency room or intensive care unit. And in some heart-breaking circumstances, partners have fought to have the right to visit a partner in the hospital, only to have his or her partner die before the matter could be resolved. This issue needs to be actioned to uphold the right of same-sex partners. So when they are faced with situations like the need to hire an accident lawyers in md, they can easily provide for themselves.(See, for example, Langbehn vs. Jackson Memorial Hospital, data.lambdalegal.org/in-court/downloads/langbehn_fl_20090929_order-granting-motion-to-dismiss.pdf).

Such cases can be avoided, for the most part, through the careful drafting of a medical power of attorney, which is an essential document for same-sex partners. Among the provisions that should be included in a properly-drafted medical power of attorney:

  1. A provision that names the “well” partner as the attorney in fact or agent. Once a same-sex partner is named as the agent or attorney in fact under the power of attorney, the partner must be given ongoing and up-to-date medical information about his or her sick partner. The authority of the partner cannot then be challenged by medical personnel or family members of the sick partner.
  2. A provision that provides a specific HIPAA waiver, to allow the partner access to medical records and information. HIPAA protects a person’s medical information; only persons designated in written HIPAA waivers are entitled to access otherwise-private medical information.
  3. A provision stating specifically that the partner, and any children who may not be biologically related to the sick partner, are to be considered “immediate family” with full access to the sick partner. This provision protects not only a same-sex partner, but children of the partnership who may not be considered “immediate family” despite having been raised by the sick individual.

Other provisions may be necessary under the specific laws of the state where the same-sex partners reside. Same-sex partners interested in protecting their rights to be treated fairly in the event of an illness of one of the partners should consult an attorney who specializes in planning for same-sex individuals to obtain the proper documents to secure their rights in their own state of residence.