Health Care Proxies for Same-Sex Couples

We're very pleased to present the second in a series of articles about legal resources for same-sex couples.  They will be posted every Wednesday.  Our goal is to make sure that your gay or lesbian family is protected, both as you plan your gay wedding and continue your lives together.  The article below was written by Claire Bartholome, who in addition to being an estate planning attorney, is also a client of 14 Stories.

We have all heard horror stories of same-sex spouses excluded from decisions about a spouse’s care, treated like strangers by medical professionals and prevented from visiting by a spouse’s blood relatives.  Thankfully, marriage equality has alleviated these concerns for couples in some states, in theory.  In practice, however, without explicit documentation, same-sex spouses may face discrimination. 

Here are some reasons why Health Care Proxies are essential for same-sex couples: 
  • Discriminatory health care professionals. No matter what the law says, discriminatory individuals may try to stand in your way when you are faced with the challenge of making health care decisions for your spouse.  If your spouse appoints you as health care proxy, you are empowered to make medical decisions on his or her behalf and access medical records, regardless of marital status.
  • Hostile family members.  Even if your blood relatives are not currently hostile to your relationship, it is possible that under the heightened stress of medical crisis, they could attempt to assert their authority as greater than that of your spouse.  In Massachusetts and other states that have embraced marriage equality, you have the law on your side, but it is always helpful to have explicit documentation of your spouse’s appointment of you as an agent for health care decision-making and access to medical records. 
  • Travel considerations.  When you travel beyond the borders of states that recognize marriage equality, your marriage may not be recognized.  If you or your spouse fall victim to a medical emergency out-of-state or out-of-country, your marriage may be ignored.  By producing a copy of your Health Care Proxy, you will maintain your rights to make decisions about your spouse’s care and have access to your spouse’s medical records.
  • Because laws do change.  While no viable challenges to marriage equality in Massachusetts loom on the horizon, the entire country remains a battlefield for same-sex couples.  State and Federal laws may change for the better or worse.  Naming your spouse as your health care proxy can provide protection in an uncertain future.
    Claire Bartholome is an Attorney with the Law Office of William J. Brisk.  Her practice specializes in estate planning for same-sex couples in order to combat discrimination, legal challenges, and prejudice.  This information is not intended to provide legal advice.  For information as to how the laws apply to your specific situation, consult an attorney.

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