{Read in 5 Minutes} As a Trusts and Estates attorney, I very often work with clients on their estate plans, whether that’s writing Wills, Powers of Attorney, Health Care Proxies, or Living Wills. Today, I want to talk about Health Care Proxies with a specific focus on LGBTQ married couples.
Like much of America, I was both shocked and dismayed when the Supreme Court overturned Roe v. Wade in June. As an attorney, it’s incredibly heartbreaking when I see people using the law to hurt people instead of help. However, this is the reality that we are presently living in and, unless there is a significant and unexpected change in the makeup of the Court in the very immediate future, things are going to go from bad to worse very quickly.
Aside from the very upsetting and alarming decision to overturn Roe v Wade, I was incredibly shocked to see Justice Thomas writing in a concurring opinion that essentially invited conservative groups to challenge longstanding precedents, specifically naming Griswold v. Connecticut (the right to purchase birth control), Romer v. Evans (preventing states from criminalizing same-sex intimacy between consenting adults), and even Obergefell v. Hodges (recognizing a nationwide right to same-sex marriage).
Even if the Supreme Court doesn’t wind up overturning these precedents, Justice Thomas’s comments will likely embolden radical bigots in this country who are looking for any excuse to discriminate against people on the basis of their sexual orientation or gender identity.
This is how it plays out. Married couples enjoy certain rights, and among those rights is the ability to make major medical decisions for each other. For example, regardless of whether we have signed any medical directives or a Health Care Proxy, my spouse would be able to make a medical decision for me if I were unconscious, uncommunicative, or simply unable to do it. Almost every state affords this right to spouses.
Now, envision a situation where my spouse and I are traveling in a part of the country where people are openly hostile to same-sex couples, and they are looking for any excuse to deny rights, looking to bring matters to the courts to challenge marriage equality. If we have a nurse, doctor, or hospital administrator who refuses to respect or recognize the validity of our marriage, that’s game over as far as the automatic right to make this medical decision. Even if we sue to get them to recognize our marriage and win, it’s still going to take quite a while (and a considerable amount of legal fees) for a lawsuit to make its way through the Court system.
There’s a very easy way to prevent this from happening — sign a Health Care Proxy. I’ve written a couple of articles on Health Care Proxies in the past, and they are a very good idea for most people. However, for same-sex couples, it is now an urgent matter that they sign one.
By the way, it doesn’t matter to me if you pay an attorney (me or frankly, anyone else) or do it yourself, it’s essential that you have one. For those of you who are inclined to have an attorney prepare or update it, please contact your attorney. For those of you that would like to do it yourself, the New York State Department of Health has an excellent and free fill-in-the-blank form available on their website, which you can access by clicking here. This should take 10 to 15 minutes to accomplish and can provide an untold amount of protection and comfort in a situation where someone refuses to respect a spouse’s right to make a medical decision. Even if they ignore your marriage, they cannot ignore a Health Care Proxy giving your spouse rights to make this decision as an agent, irrespective of whether or not they recognize them as a spouse.
Hopefully, this is the last article that I have to write on protecting the basic human dignity of people in light of a very scary and alarming Supreme Court. Yes, that is more political than I’ve probably been in any other blog post, but this is a real warning of what is to come. Protect yourselves immediately, please.
For more information on this topic, please contact me.