Friends and loved ones have been denied access to hospital rooms or visitation rights. A long-divorced spouse sues a deceased man’s surviving same-sex partner for inheritance or life insurance benefits. Estranged members of a patient’s biological family suddenly appear in a health crisis and sue for guardianship of a child, sibling or former spouse.
A same-sex couple was on vacation in Florida with their children when one of the women became ill and died. Her partner sued the hospital because the hospital did not permit her to make healthcare decisions on behalf of her partner or allow her to visit her dying partner. Just last December, a woman was not allowed to visit her partner in a hospital in Tennessee without her partner’s mother accompanying her.
In another case, a financial services company awarded a deceased man’s retirement benefits to his ex-wife, rather than his longtime, same-sex partner who was named as his beneficiary. After two years of litigation, the deceased’s partner — and not his ex-wife — was ruled to be the lawful beneficiary.
These cases demonstrate the importance of documentation to spell out our wishes. In Pennsylvania, we recommend executing the following documents, no matter your age, health, income or partnership status. These documents are particularly important for LGBT people who may not have the protection of legal marriage. Most states have similar laws; check your state’s rules for additional information.
— Will: A legal document that allows you to designate who inherits your money, property and personal belongings.
— Health-care Power of Attorney (POA): Allows you to designate someone to serve as your health-care agent, who can access your medical records and make health-care decisions. A POA should allow your designate access to your records, but you may want to include the name of a trusted person whenever you are asked to authorize the release of protected health information. A health-care POA is critical if you become unable to make health-care decisions for yourself.
— Living Will: A written statement of your wishes regarding life-sustaining treatment and other care if you have an end-stage medical condition and are unable to communicate those wishes. A living will can spell out your desire for resuscitation efforts, surgery, pain medication, etc.
— Financial Power of Attorney (POA): Allows you to name someone to serve as your agent to make all financial decisions. While this documentation is prepared now, you can determine when the designate will manage your finances for you, e.g. when you are hospitalized, mentally unable to make decisions for yourself, etc.
— Standby Guardianship: Allows terminally ill parents to plan for their children’s futures.
It may be hard for you to think about these things, although many people find that making these decisions not only helps their family and friends know what to do, but they also feel relieved by knowing that their wishes will be followed. You should write down your desires now. This is the best way of ensuring that your wishes will be understood and respected when the time comes.
Finally, consider an estate plan. This plan includes the documents outlined above, but also can include trusts, beneficiary designations, gifts, planning for estate taxes and much more. For partnered LGBT people, an estate plan is very important, no matter your income level. In Pennsylvania, an inheritance tax of 15 percent is imposed on the value of the assets you leave to your surviving partner. Married couples pay no inheritance tax. The only way for unmarried couples in Pennsylvania to assure that their partners are provided for is to enact an estate plan that guards your assets to the greatest possible extent.
Ronda B. Goldfein, Esq., is executive director of AIDS Law Project of Pennsylvania. Ed Bomba is communications chair for the LGBT Elder Initiative. If you have questions or comments, visit www.LGBTEI.org.