There are two ways around this problem. The first is to create and carry a document sometimes called a Living Will. This document states your desires for various medical procedures, in the event that you are unable to make such decisions for yourself. Depending on what state you live in, the document that you produce will have any one of a number of names. It can be called a Living Will, a Healthcare Directive, a Medical Directive, a Directive to Physicians or a Declaration Regarding Healthcare. This document clearly states your wishes for a variety of different scenarios regarding your own medical care, including whether you would want heroic measures to artificially extend your life. It also includes whether you want to be an organ donor. This document is considered legal proof of your preferences, and makes them very clear. The form for this document varies from state to state, and you need to use the form accepted in your state.
The second solution is to produce a durable power of attorney for healthcare. Depending on your state, this form can also be called a healthcare proxy. This document designates another person to make medical decisions for you if you become unable to make them yourself. For gay and lesbian couples, this document is crucial because it can be the only way a hospital will listen to your partner, rather than calling in some distant relative if you are injured in an accident. The durable POA should be filed with your particular health insurance carrier. If you’re traveling, though, carry a copy of it with you at all times. It is an important document to have in addition to a living will because there may be situations which you’re unable to anticipate while creating the living will; a durable POA covers all your bases by designating your partner to make decisions in your best interests.
HOSPITAL VISITATION
In addition to a Power of Attorney for healthcare, gay and lesbian couples should also fill out a hospital visitation authorization. This form, available online or through a lawyer, lets you designate specific individuals who are not related to you, either by blood or marriage, to be able to visit you in the hospital if you are unable to give direct authorization yourself. While it doesn’t seem like such a form should even be necessary, it unfortunately is. Poorly-trained hospital staff, or even illegal hospital policies, may prevent your partner from seeing you in the event of an emergency, and that is the sort of situation that can be mitigated by preparing the proper paperwork ahead of time.
The form states that you authorize that if you are ever incapacitated by illness, it is your wish that a certain person or persons be given preference to visit you, whether or not there are other people related by blood or by law who want to visit you. The document remains in effect until you specifically change these instructions to your medical staff.
Imagine that you suddenly become very ill and end up unconscious in the intensive care unit, where visitors are tightly regulated. Your partner, or any children for whom you are not the legal parent, could be barred from even being able to see you. This type of policy could make a difficult situation even more heartbreaking for your loved ones. As horrible as it is to imagine, think about how your partner and children would feel if they were unable to say their last goodbyes to you. Now go fill out some paperwork!
Hospital visitation authorizations are also useful if you know in advance that you’re going to be entering the hospital, as in the case of a planned surgery. You should not only file this form with your medical insurance provider, but also call the hospital and speak to someone directly about your wishes. Talk to the hospital administrator or the community outreach department. If they fail to address your concerns, contact the Gay and Lesbian Medical Association at http://glma.org for more help.
Again, while properly documented same-sex couples in CA (and VT and HI) should already have this right, it is an excellent idea to fill out this document just in case you find yourself in a hospital out-of-state where your relationship isn’t recognized. Carry this document with you at all times.
MOUNDS OF PAPERWORK: HIRE A LAWYER OR DO-IT-YOURSELF?
Now that you have this daunting pile of paperwork ahead of you, there are two main choices for how to proceed with actually preparing and legalizing it. You can either consult a lawyer who is knowledgeable in estate planning and family protection of gay and lesbian couples or you can do it all yourself.
FINDING A LAWYER
While it may be tempting to get all of these documents in order by yourself, make sure you’re being realistic about the prospect. It will take time, initiative, research and probably some online skills to be able to locate and fill out all the necessary forms. If you’re not comfortable cold-calling various state agencies, are unable to sit on hold for long periods of time and do not enjoy speaking at lengths with strangers about your personal life, then using a lawyer may be a good option. They can do most of the research for you, and will limit the amount of direct interaction you’ll need to have with government bureaucracy.
When looking for a lawyer, it’s best to find someone who has dealt with non-traditional families before. Get referrals from other gay or lesbian couples, or consult your local gay and lesbian community center or gay newspaper for recommendations. If you live in an area without such resources, go online. Try searching for a gay and lesbian lawyers association in your state. If all else fails, find some lawyers in your area who advertise estate planning services. Call them up and ask if they’ve ever done documentation for a same-sex couple.
An excellent resource online is the National Center for Lesbian Rights, located in San Francisco, California. Their website is http://www.nclrights.org. This organization can provide information on gay-friendly lawyers in many areas of the country, as well as advice on other legal matters, for both gay and lesbian clients. The staff is very helpful, and they currently can offer suggestions via telephone and email.
Another good place to look online is Lambda Legal Defense and Education Fund. This is a national organization that helps gays and lesbians achieve civil rights. They offer all sorts of useful legal advice for a range of situations. Their helpdesk, located at http://www.lambdalegal.org, does not make legal referrals but they do maintain a list of attorneys who are sensitive to gay issues. This site is another great option to begin the process of finding a gay-friendly lawyer.
Once you think you’ve located an attorney who is willing and qualified, there are certain questions that you should ask by way of a screening process. Inquire if she has any experience with families like yours, and ask for specific references, if possible. Ask whether she has any personal doubts about equal rights for gays and lesbians – you do not want an attorney who is not really on your side. Find out if she is willing to look at sample documents produced by gay and lesbian organizations. Above all, trust your instincts – if you feel uneasy or notice that your lawyer is uncomfortable around you and your partner, keep looking.
If there are worries about the cost of using a lawyer, consider how important the documentation you’ll be drawing up will be. These documents can have a major influence on the lives of you, your partner and any children you may have and need to be done one way or another. Make it a financial priority, if necessary. Costs will vary depending on your area of the country, and may also vary dramatically from attorney to attorney. Don’t be afraid to comparison shop. Call a few different lawyers and ask for estimates. While the cost of most of these documents will vary, most lawyers will charge at least $500 just for preparing a will.
Some lawyers more experienced in estate planning for lesbian and gay couples may have a complete package deal. It may include pre-drawn-up forms that can be changed for your particular situation, for a set fee. This approach could end up saving money, especially if the documents you need to file are common in your state. However, if your situation is complicated or if you’re dealing with complex trusts or other financial issues, expect to pay more in lawyer’s fees.
When using a lawyer, expect an initial consultation for which you may or may not have to pay. There will then be a detailed meeting, which can last several hours, in which