Chapter 6 Advance Directives

• Library: Estate Planning for Same-Sex Couples (ABA) (2015 Ed.)

Chapter 6 Advance Directives

Advance directives and a HIPAA authorization are integral parts of the estate plan. These documents allow the client to be proactive in planning the steps she wants to take or treatments she prefers to avoid. This includes screenings, preventive tests, or curative treatments. The HIPAA authorization allows the client to decide with whom her doctors are authorized to speak. In situations where the client's birth family may be antagonistic, such authorization is helpful to avoid hospital hallway shouting matches.

These documents also provide guidance to family members who may have never addressed the issue with the client. Most important, these documents can prevent interfamily disputes over the level of care the client wants when she is no longer able to communicate her wishes. All 50 states have advance directive statutes. Each state has its own form that is recognized by health care providers. These forms should also be honored outside the client's home state.

The living will and health care power of attorney are separate documents that complement each other. New federal Medicare regulations require every medical or health care facility that receives federal funds to honor the directives.

These documents provide clients with the opportunity to name the person responsible for carrying out their instructions concerning health care and end-of-life decisions. The directives also allow clients to designate the persons who have authority to visit them in hospital and other health care facilities.

It is also important to remind clients that their children, once they turn 18, need to execute these documents as well. Many parents are surprised to realize they are no longer legally permitted to have access to their adult children's medical records—even if they are paying the bills.

Some states have taken the matter further and provide the physician orders for life-sustaining treatment (POLST) paradigm. This program emphasizes the patient's wishes concerning end-of-life care. Patients discuss their treatment plans and wishes with their doctors and document those wishes in the POLST form. POLST forms are designed for people whose life expectancy is one year or less. These forms complement but do not replace advance directives. A POLST guides emergency and inpatient treatment planning.

A. Importance for LGBT Clients

LGBT clients think visitation in health care facilities is a very big deal. There are many stories about LGBT persons being denied access to their partners because of hospital policies that favor "immediate family" or biological family members refusing to permit the patient's same-sex partner or spouse from having access. Historically, hospital policies never included the patient's same-sex partner—even when the patient had made their wishes clear. Hospitals have also been complicit with a patient's "immediate family" in evicting same-sex partners from a patient's room.

The case that brought this problem to the nation's attention involved Janice Langbehn, her partner, Lisa Marie Pond, and their three minor children, Danielle, Katie, and David.

In February 2007, Janice, Lisa, and their children traveled to Miami to board a cruise ship. They never left port.

Thirty-nine-year-old Lisa suffered an aneurysm and collapsed while boarding the ship. She was taken to Ryder Trauma Center at Jackson Memorial Hospital. Janice arrived with the children shortly after Lisa was admitted. Janice informed the admitting clerk that she was Lisa's life partner and could provide any necessary medical information. She also told the clerk that she was Lisa's health care attorney in fact.

The hospital admitting clerk controlled all access to patients. She rejected Janice's offer, refused to provide her with any information about Lisa's condition, and refused to allow Janice and the children to see Lisa.

A hospital social worker told Janice she should not expect to receive any information because they were in an "anti-gay city and state." He also told Janice she would be unable to get a court order requiring the hospital to grant access because it was a holiday weekend.

Hospital personnel received a faxed copy of the power of attorney naming Janice as Lisa's guardian and health care attorney in fact. They placed the document in Lisa's file and ignored it.

Several hours after Lisa was admitted, Janice was allowed to see her for five minutes. During the time Janice was prevented from seeing Lisa, other families and children were admitted to the restricted area. Lisa was placed in restraints for her own protection because no family member was present to provide care and supervision.

Lisa was transferred to the neurosurgery intensive care unit without Janice's knowledge. The clerk did not tell her about the transfer.

Lisa's sister arrived almost eight hours after admission and was recognized as a relative and informed of the transfer. At this time, Janice and the children were able to visit with Lisa. Lisa was in a coma when she died at Jackson Memorial Hospital. Janice and their children were never allowed access to Lisa while she was conscious.

Janice filed suit in U.S. district court.¹ The court granted the defendants' motion to dismiss. The court held that the defendants were insensitive and caused needless distress—but they were not liable for any damages. Janice did not appeal the decision.

During this entire time, hospital personnel conferred with people and released medical records to people who were not authorized, in violation of HIPAA. Yet, they refused to provide the same courtesy to the one person who did have signed, legal authority to receive the information.

Janice and Lisa Marie did everything right. They had all the necessary documents to establish their legal right to provide for each other. And, it meant nothing to the staff at Jackson Memorial Hospital.

B. Living Will and Health Care Power of Attorney

Living wills and health care powers of attorney (aka advance directives) are essential for same-sex couples. Without them medical providers and medical institutions will look to blood relatives for health care guidance. The patient's same-sex partner or spouse will not be consulted and may, in fact, be prevented from visiting or participating in health care decisions.

A living will is a legal document used to state a person's wishes concerning health care decisions. The document comes into play when the individual is incapacitated and can no longer communicate his wishes.

The individual may also prohibit the use of certain treatments. The client is not limited to the preprinted language. Most states have accepted forms but these can been adapted to meet individual client needs by adding additional instructions to the standard form. This makes the document a very powerful planning tool.

Signing a living will does not mean the individual loses control over her health and medical care. It serves as notice to health care providers of her wishes and intentions. It is in effect even after she can no longer communicate these wishes to her doctors or other health care providers.

The living will also lets the family know what the individual does and does not want. The document allows the client to designate the person appointed to carry out her wishes. The client's family does not have superior rights to the person named in the document as the agent.

The living will is used only if the individual becomes incapacitated and is unable to give informed consent or refuse treatment. As long as the patient is competent and able to communicate, she remains in control.

The health care power of attorney is the companion document to the living will. This document is specifically designed for use in health care situations.

This is also known as a health care proxy. It allows an...