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LEGAL BRIEFS

POWERS OF ATTORNEY

            Judy and Susan, who have been together 22 years, have a house in the suburbs, a business, even a couple of kids. Then something happens.  There is a call from the hospital and Susan has been in an accident. Suddenly all the things they had been planning to do to protect each other “just in case something happens” need to have been done yesterday.  But it is too late. Now, Judy, and the children Susan raised as her own, sit in the hospital lobby and wait while Susan’s “next of kin” make the final decisions about her life and death. Later, they stand by while her property is distributed to disapproving parents or distant cousins.

            Under most circumstances, those of us in the LGBT community are able to make our own health care decisions, comfortable that our partners will be nearby, ready and able to help us when they are needed. And so, like Judy and Susan in the scenario above, we don’t ask ourselves the “what if” questions that surround things like tragic accidents and death.  Most people outside the LGBT community can afford not to ask those questions.  Confident that the laws have been drawn with their needs and their families’ needs in mind, they can relax with the thought that a  good “common sense decision” was already been made for them when the laws were enacted.  Unfortunately, those of us in the LGBT community, do not have that luxury.

            So, what would have happened to Susan and her family that night?  When Susan was unable to make her own health care choices, her physicians and other health care providers would have begun to contact her “family.”  Not Susan’s family of choice, but rather a legal spouse, parents, brothers and sisters, or even more distant blood relations. Upon their arrival, Susan’s “traditional” family would have been given priority to visit with Susan and consulted exclusively for decisions about treatment. Judy, and any children who were not legally related to Susan, would have had no voice in the course of treatment and could very well have been left sitting in the waiting room while Susan’s other family sat at her bedside.

            A Health Care Power of Attorney can change this scenario.  A Health Care Power of Attorney designates a particular person as your health care agent to make health care decisions for you, including permitting or declining medical care. The agent can be anyone, including your partner or best friend.  As soon as you are unable to make health care decisions for yourself, the agent  becomes the decision maker.  Your health care agent can also be given priority to visit you over other members of your family.  (Caution: Standard forms typically do not include language regarding visitation privileges since most people outside the LGBT community tend to designate traditional family members who would have a visitation preference anyway.  Be sure you consult a professional about including the appropriate language.)

            Your health care agent can be given broad discretion to make health care decisions for you, including withholding treatment needed to keep you alive.  Limitations can be set out in the document itself or simply discussed with your health care agent ahead of time.  Another helpful document is a living will, also called a Declaration of a Desire for a Natural Death, which can be prepared as a compliment to Health Care Powers of Attorney.  As long as you are competent to make decisions for yourself, both your Health Care Power of Attorney and your Living Will can be revoked or changed. With a Health Care Power of Attorney in place, you can rest assured that the person you want by your side will be there and be able to make the kind of health care decisions you would make for yourself.

            Another type of Health Care Power of Attorney is available for same sex couples raising children together. Because co-parent adoption (commonly referred to as second parent adoption) is not available in North Carolina, only one parent, either the biological parent or the adoptive parent, will be legally related to the child and thus able to make health care decisions or access medical records for the child.  A Minor’s Health Care Power of Attorney signed by  the biological or adoptive parent will permit the parent’s partner to access medical records, discuss medical problems with the child’s health care providers and make emergency health care decisions.

            While your health care agent has broad discretion to make health care decisions on your behalf, he or she will not have any power to manage your financial or business affairs.  The power to manage financial affairs is given to an agent designated in a General Power of Attorney. The agent is called an Attorney In Fact.  An Attorney In Fact is typically given the authority to access and manage your money and investments, pay your bills, borrow money for you, manage your real property and generally take other actions to manage your affairs.   However, just like Health Care Powers of Attorney, General Powers of Attorney can be drafted with limitations that allow them to be used only in very specific situations, such as for a specific period of time or to accomplish a specific task.

            A General Power of Attorney can be effective immediately or it can become effective upon your incompetency.  If it is effective immediately,  your agent will be able to co-manage your financial affairs even while you are capable of managing them yourself. (Caution: If effectively immediately,  your appointed agent will be able to make decisions regarding financial transactions with or without your consent, so make sure you are comfortable with such an arrangement.)  A Power of Attorney that becomes effective when you become incompetent is called a Springing Power of Attorney.  A Springing Power of Attorney allows you to manage your own affairs independently, as long as you are able, while giving you the piece of mind that if you become incapacitated, your partner will be able to act on your behalf.  Any Power of Attorney that remains effective after you become incompetent is called a Durable Power of Attorney.

            Because our lives and families are typically not considered when the laws of our state are created, members of the LGBT community have to act to protect themselves.  Although we can not create for ourselves all of the protections available to others under the law, we can act to protect ourselves and our partners in significant ways.

             Note: As you read Legal Briefs, please remember that our purpose is to provide general information about legal topics, not to give legal advice.  The needs of any individual in any particular set of circumstances can not be fully addressed in this forum.  Also remember that while the information we provide is accurate at publication, laws constantly change. Always seek competent professional advice when making legal and financial decisions.