- Documents Provide Legal Protections - Photo by Jason Morrison
There are five legal documents that same-sex couples must have to protect themselves and their partners from loss of property, legalized discrimination and a loss of power in a medical setting. These documents are a will, living will, hospital visitation directive, medical power of attorney and financial power of attorney.
Why Same-Sex Couples Must Have Wills
Despite some success in the battle for marriage equality, most states do not provide the same protections and rights for same-sex spouses as they do for different-sex spouses. This means that after the death of one partner, property and assets may not go to the surviving spouse or life partner, even if the couple was married, had a civil union or domestic partnership.
In fact, according to Lambda Legal’s “Take the Power: Tools for Life and Financial Planning” tool kit, lesbian, gay, bisexual and transgender (LGBT) people whose partners die without wills may find that they are completely shut out of the process to distribute or receive assets. “Depending on circumstances like where you live and whether you were married, the state may automatically hand over your possessions to a relative you haven’t seen in years, ignoring the people you care about and who care about you,” the tool kit explains. A will is critical to outline how assets will be distributed, what type of burial is desired, who will care for children and who will serve as executor to see that the wishes outlined in the will are carried out.
A Living Will or Advance Directive is Important
A living will, or advance directive, is a legal document that outlines what types of life-sustaining measures can be used if necessary and which measures are not wanted. This document can be important to same-sex couples and persons living with HIV because it outlines end-of-life choices that may be contested by one person’s family members. In addition to having a living will, each partner should discuss their end-of-life choices with family members to avoid objections later on.
Hospital Visitation Directives Preserve Partners’ Rights
Although it is hard to believe that hospitals and medical personnel would prohibit same-sex partners from being together in the hospital, the reality is many couples have experienced this discrimination. “While heterosexual couples typically don’t have to provide marriage licenses to hospitals in order to prove they are husband and wife, same sex couples often must document their relationship to hospital officials before being allowed to take part in a partner’s care,” wrote Tara Parker-Pope in her May 12, 2009, New York Times Well Blog, “How Hospitals Treat Same-Sex Couples.”
Even with documentation like marriage certificates or registered domestic partnership, LGBT partners are often forced to plead their case for visitation with hospital officials, Parker-Pope reported. Same-sex couples must not rely on marriage, civil union or domestic partnership to ensure that they will be permitted to visit their loved one. A hospital visitation directive or authorization can stand on its own or be part of a living will or health care proxy. But no matter how the document is written, it is a legally binding document that will ensure partners can be together during medical emergencies.
Empower a Partner to Make Medical Decisions
A medical power of attorney, also called a health care proxy or durable power of attorney for healthcare, is a legal document that names a person who can make medical decision if a person is incapacitated. “Unless you have designated someone to make these decisions for you by executing a durable power of attorney for healthcare, your healthcare providers will turn to your relatives to make these decisions,” according to “Lifelines: Documents to Protect You and Your Family” by the National Center for Lesbian Rights.
For those who want to ensure that the person closest to them is the one making medical decisions, a health care proxy is essential for naming who will make medical decisions in a time of crisis. The proxy must include a hospital visitation directive if a separate one has not been created. Lambda Legal’s tool kit recommends using a passport satchel to carry important documents like health care proxies and marriage certificates in case of emergency.
Choose Who Will Oversee Financial Matters
Like many of the documents same-sex couples need, a financial power of attorney is important to designate who will be in charge of financial matters in case of medical emergencies or incapacitating illness. Partners without a financial power of attorney will be at the mercy of the court to appoint a guardian. “Courts may consider your relatives to be first in line to take over your finances, even if you would have made a very different choice,” the “Take the Power” tool kit explains.
Until same-sex couples are afforded all the same rights as other married couples, it is necessary for LGBT partners to protect their wishes and their partners from discriminatory practices. There are five documents that are critical for life partners to outline their wishes in times of medical emergencies or death. Partners must have a will, living will, hospital visitation directive, medical power of attorney and a financial power of attorney to ensure that their wishes are respected.
Genna Cockerham - Genna Cockerham has been writing online since November 2008. She served as Marriage Feature Writer from December 2008 to February ...
