Does the Supreme Court’s decision in the DOMA case (U.S. v. Windsor) change how your LGBT clients are treated at a hospital? Yes and no, depending on their circumstances. But the upshot is: all LGBT clients still need health care directives (as does everyone else).
Here are the highlights:
In Windsor, by striking down Section 3 of DOMA, the Supreme Court has held that defining marriage is a state-responsibility not in the purview of the federal government. The court also upheld section 2 of DOMA, thereby affirming the right of states not to recognize same sex marriages performed legally in other states.
What’s Changed for Health Care Decisionmaking:
The ruling benefits same-sex couples — in some circumstances –who marry in states with legalized marriage. It helps:
- LGBT couples who haven’t named a health care power of attorney (HCPOA)—and are hospitalized in their own state (or another state recognizing same sex marriage). Being married allows the married spouse to make healthcare decisions on their partners’ behalf and function as the health care agent should the need arise, without having been expressly named in a health care power of attorney document. This is not a small point for LGBT individuals. And we all know very well, most Americans have not yet managed to complete their advanced directives (currently at 25 – 40% of adults).
- It also gives them access to the partner’s health care information under HIPAA– including the ability to talk to doctors, insurance companies, etc. Under HIPAA rules, the health care agent is expressly deemed authorized to receive personal health information.
On the other hand, from a practical standpoint, much has not changed.
The ruling does nothing to change the status of Health Care Decisionmaking for:
- Same sex married couples hospitalized in a state that doesn’t recognize same sex marriage. If same-sex couples travel, they still need the protection of a health care power of attorney.
- Same-sex couples not residing in a state with legalized same-sex marriage.
- LGBT individuals in all states who are not in a committed relationship. In the absence of an advance directive, many state laws default to automatically appointing a family member as the health care agent. If there has been family estrangement, a client may have additional reasons to need a HCPOA and to name a non-family member as agent
Fundamentally, it is still important for all clients – regardless of sexual orientation or marital status — to have executed health-care directives and make their health are wishes known.
Randi J. Siegel, MBA, is the President of DocuBank (docubank.com), the largest advance directives registry in the U.S., which ensures that the emergency information and healthcare directives of its 200,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. A member of the Center for Advocacy for the Rights and Interests of the Elderly, the International Society of Advance Care Planning, and the Coalition to Transform Advanced Care, she is active in health education and public engagement related to advance care planning and advance directives and serves as Pennsylvania liaison to the National Healthcare Decisions Day initiative. Randi is an ongoing contributor to the Academy blog.
Academy Guest Blogger
American Academy of Estate Planning Attorneys, Inc.
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