In the midst of the great healthcare debate in Congress and all of the care and insurance decisions being made on our behalf, it seems like a good time to go over some of the legal decisions and options that domestic partners can already take advantage of. There are numerous horror stories of someone falling ill, their longtime partner being thrust out of the picture, and the family members taking over. It did not matter how long the partners were together, and it did not matter how much the patient hated their own family members. They were now in charge.
But this does not have to be the case. A simple but vital document called a Healthcare Power of Attorney can empower you and your partner in healthcare decisions. Maybe more importantly, it can help exclude people you do not wish to make decisions from being able to take over during a time of medical crisis.
People You Choose
One of the most important features of a revocable living trust is that it empowers the people you choose to handle medical decisions in the event you can not make those decisions yourself. You choose the people who will be legally empowered, in successive order, to work with the doctors and other medical personnel in your treatment. No one can claim to be a close relative and override your healthcare agent’s decisions. If the hospital did follow the relative’s instructions in the face of a valid Healthcare Power of Attorney, then they are exposing themselves to a huge lawsuit.
While most same-sex couples choose their partner to make medical decisions during a time of crisis, it is also important to name a few back-up people to handle things. What if both partners were involved in an accident? What if your partner is out of the country and unreachable? Who makes those decisions then? I generally recommend to my clients that they choose no fewer than 2 back-up agents. They should be people whose medical judgment and philosophy you agree with, who are medically knowledgeable (or at least medically curious enough to do their own research), and who are unafraid to stand up to doctors if they believe they are in error.
Decisions can be as wide-ranging as you choose
A Healthcare Power of Attorney grants as much or as little power to your agent as you wish. Their authority can extend as far as making all of the same kinds of decisions you can about healthcare from choosing the doctor to treat you or choosing the course of treatment down to the type of pain relievers to use. It is entirely up to you.
Because of the broad range of choices in medical care, some people choose to go into extreme depth about the different choices they would make under certain circumstances. With the exception of major end of life care decisions, I usually recommend that if you trust the people you have named as your agents to make good, informed decisions under the circumstances, then it does not make sense to limit their authority to handle medical decisions in the Healthcare Power of Attorney. On the other hand, I strongly urge my clients to discuss the kinds of care and treatment they want under these circumstances with the people they have chosen so they understand your thoughts and wishes. This will help guide them in making decisions should the circumstances arise, but it will not force them to let the doctors follow a course of treatment they feel is unwarranted because the document took some authority away from them.
Exclusion of people from hospital room
There are plenty of stories about people in a coma being surrounded by positive discussions, music, and even laughter and then coming out of the coma as if drawn towards the positive energy in the room. While I have not seen any scientific evidence to support this, people do believe it to be true. In numerous cases when a partner falls ill and they do not have a Healthcare Power of Attorney, estranged family members swoop in, kick out the partner, and negative, heated arguments fill the room. This is often the case whether partners have been together for a year or thirty years, and the reason for the estrangement was never settled. No, it’s not fair, but it is the law.
However, with a Healthcare Power of Attorney the people you choose to be in charge of medical decisions also have the ability to regulate who can visit you in the hospital and more fully control the recovery environment. And so the people who have been estranged, especially because they rejected the committed partnership, are the ones who can be excluded from the hospital room.
End of life care decisions
There has probably been no bigger furor in this past Summer’s healthcare debate than end of life care. Anti-reform protestors screamed about death panels and “pulling the plug on Grandma,” but all the provision really did was reimburse doctors for a medical consultation on care decisions at the end of life regarding life support and artificial nutrition. The decisions formed by partners mirror those decisions spouses should be having. The two main questions are 1) do you want to make the decisions yourself ahead of time? or 2) do you want your partner or others to make that decisions for you?
Many people choose to make that decision themselves ahead of time through a document called a Living Will. In
The second option is to simply not have a Living Will and then the people you have named in your Healthcare Power of Attorney will make those decisions on your behalf. For some people, this makes more sense because they wish to have a person they know and trust make that final decision for them rather than making the decision ahead of time. It really is a matter of personal choice whether or not to have a Living Will or to let your partner make these decisions for you with their authority as your Healthcare Power of Attorney. If you have neither document, the decision will be made by your closest living relatives… no matter how estranged they are from you.
While the healthcare debate will probably continue on with different subtopics and debates over health insurance coverage and treatments, one thing that needs no debate are the benefits of making your own healthcare decisions ahead of time and putting in place the people you want to make decisions if you fall ill. Leaving your life in the hands of courtroom legal procedures is not a healthy idea at all.
Jeffrey G. Marsocci is the author of partner protection planning books such as The Gay Marriage Alternative and Estate Planning for Domestic Partners. In addition, Mr. Marsocci is a