While many in the LGBT community embraced the U.S. Supreme Court decision in U.S. vs. Windsor, which struck down parts of the Defense of Marriage Act (DOMA), the relatively narrow scope of the ruling leaves many same-sex partners in limbo in terms of their rights when their partner is in the hospital. The precise impact of the high court’s ruling on those in the LGBT community depends on whether the partners were legally married in a state that recognizes same-sex marriage as well as the state in which a same-gender life partner is hospitalized.
However, our experienced New Mexico LGBT Estate Planning Attorneys have provided an overview of what the decision means when a same-sex partner is incapacitated or receiving medical treatment. Irrespective of the state in which you are hospitalized, same-sex partners who are armed with certain documents, such as an Advance Medical Directive, Health Care Power of Attorney, Durable Power of Attorney for Financial Issues and Health Insurance Portability and Accountability Act (HIPAA) Authorization can preempt disputes and problems if a sex-gender partner is incapacitated so that medical decisions and financial affairs must be properly managed.
If you were legally married in a state that recognizes gay marriage, you may be entitled to the same rights as heterosexual married couples in terms of obtaining insurance or medical information about your spouse as well as providing input about medical decisions. However, the Windsor decision left an important part of DOMA intact by preserving the right of states to decline to recognize same-sex marriages lawfully conducted in other states. This means that even if you were lawfully married in a state where same-sex marriage is legal, the doctors and staff may defer to a blood relative as opposed to a same-sex spouse when medical decisions must be made in terms of extraordinary care or even in term of sharing medical updates. If there is any degree of estrangement in the family or lack of acceptance of your same-gender marriage, the importance of having a health care power of attorney and advance medical directive cannot be overstated.
There are other hospital scenarios where the Windsor decision does not mitigate the need for estate planning documents. If you are not married and do not live in a state where same-sex marriage is recognized, the decisions of a blood relative may trump a life partner’s decision. By designating the person that you wish to make decisions about medical treatment or extraordinary medical measures through the appropriate estate planning documents, you can prevent conflicts between blood relatives and your same-sex partner as well as confusion from medical providers.
Because financial matters may also need to be dealt with while you are incapacitated, you may also want to prepare a durable power of attorney so that your same-sex partner can manage your financial affairs. While the Windsor decision was a step in the right direction for many LGBT couples, a proper incapacity plan with carefully drafted estate planning documents can prevent disputes and potential problems.
The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.
If you have questions about same-sex marriage and estate planning, the experienced New Mexico Estate Planning Lawyers at Jay Goodman & Associates, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options
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