In the realm of estate planning same sex couples face a number of challenges because of the fact that their unions are not legally recognized federally or in most states. This impacts the financial aspects of estate planning in a number of ways, and we will be addressing some of these in future posts. But today we would like to highlight the legal instrument known as the health care proxy or medical power of attorney and the manner by which it can protect the interests of same sex couples.
The law recognizes the inherent right of a married person to make medical decisions in behalf of his or her spouse should they become incapacitated and unable to communicate their wishes. If you aren’t married, that responsibility would typically fall to your next of kin. The vast majority of individuals who are engaged in same sex partnerships are going to want their life partners to make these decisions for them, just like legally married people. Though the families of many same sex partners are supportive and respectful of their relationship, some are not. In cases when they are not, a horrible conflict can arise at the worst possible time.
This potentiality can be negated through the execution of a legal power of attorney or health care proxy. This document empowers an individual of your choosing to make your medical decisions if you cannot make them for yourself. This can be part of a comprehensive advance health care directive that also includes a visitation directive granting the right of visitation to the person or persons of your choosing as well.
Though the law in most states may not recognize the inherent rights of same sex couples, you can indeed make sure that your partner is by your side and making your medical decisions for you if necessary. All it takes is some intelligent estate planning.