Catastrophic illness, long-term hospitalization and death aren’t the most fun dinner-party topics, but they’re issues that cannot, and should not, be avoided — and planned for.
Singles and same-sex partners often are the most vulnerable when they become ill, because they have no legal spouse to step in and make decisions. The
same goes when someone dies intestate, or without a will. The horror stories abound of long-term partners being separated by families of origin who do not carry out the person’s wishes, or of estates being liquidated with no input from a surviving partner or friends.
Long story short: Take the time to put a few documents into place and your wishes will more often than not be honored.
“The standard four documents I recommend are a will, a living will, a healthcare power of attorney and a power of attorney for finance matters,” says attorney Ken Phillips. “These are very important for people in our community, as are two additional documents: a hospital-visitation form, and a HIPAA authorization, which allows for access to medical records.”
If someone dies with no will in place, there are Tennessee statues that swing into action. Personal property, bank accounts, vehicles and other items will go to people designated by the statute, usually the closest surviving family member. If a will is in place, then anything and everything designated within that document goes to the person, or entity, that the individual has chosen.
And on the healthcare front, much the same can happen if powers of attorney and other documentation aren’t in place, often to the detriment of the individual.
“Who do you want making your decision,” Phillips said. “These are advanced directives. The courts are very sympathetic to these documents, and as a matter of public policy they tend to be obeyed.”
Like Phillips, attorney Ben Papa recommends a core set of documents.
“It can vary some depending on a client’s situation, but usually I tell them to have a living will, which tells your doctors what you want done, or not done, if you’re in a permanent vegetative, terminal state; an advanced care plan, with a power of attorney for health care; a financial power of attorney so your financial needs can be taken care of; a will, so you can show who you want your property to pass onto; and a hospital visitation form, so that your partner, or whomever you designate, can see you in the hospital.”
The Obama administration's recent mandate to Medicare and Medicaid-receiving hospitals to allow for same-sex partner visitation may render that last document moot, but it’s never a good idea to have it anyway, he added.
“It’s not clear how a federal document will pay out at the local level, and these things are just a paragraph long, so it’s a good idea to go ahead and set it up,” Papa said.
Estate and Care-Related Documents
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The biggest issue for same-sex couples is to make sure that their documentation is set up in such a way that the surviving, or healthy, partner has the same authority a spouse would have.
“If my partner is in a coma, I need to be able to make decisions and that’s not going to happen automatically,” Papa said. “If other people come in, they may make those decision in a way he wouldn’t have agreed with. “These documents can get you out of that default-to-family mode.”
Both Papa and Phillips recommend getting professional help to set up the documents, because it’s vital to understand how they work, who needs a copy and other fine points. It’s also important to understand what these documents, particularly powers of attorney don’t do, and how they can be modified, added Dr. Martha Leonard, team medical director at Alive Hospice’s inpatient hospice unit at St. Thomas Hospital.
“Be sure t have a living will and a durable power of attorney for healthcare, because one will not cover the issues in the other,” Leonard said. “And by having both in place, you not only set up who’s going to make those decisions, you take a lot of burden off the partners or family members who do not want to make those decisions.”
A major myth, Leonard added, has to do with the permanency of powers of attorney.
“People think when they sign that paper, they’re signing over the power to make decision to the person or people they’ve designated, and that they’ve done so immediately,” she said. “These documents don’t come into play except in particular instances. You are designating your care in very specific cases, and for very specific things. And you can differentiate just what those are in your living will, so there’s no need to have that fear.”