Most married couples in our country take for granted their assumed right to visit their spouses in the hospital and to make medical decisions for their spouses, when necessary. The same rights are not available for same-sex couples. As of 2014, there are only 32 states and the District of Columbia, which have legalized gay marriage. Nevada is one of them. However, there are still some issues when it comes to unmarried gay couples making medical decisions in Nevada.
The case of Brittney Leon and Terri-Ann Simonelli
In 2012, Brittney Leon and Terri-Ann Simonelli were in a domestic partnership, which under the laws of Nevada, grants gay couples some of the same rights as married couples. Leon was admitted to Spring Valley Hospital, due to pregnancy complications. The hospital refused to allow her partner, Simonelli, to visit her without a power of attorney.
Regrettably, Leon lost her baby, and Simonelli could not be with her and had to rely on updates from the hospital staff. Even while Leon’s insurance, was provided through Simonelli’s employer, the HIPAA regulations kept the couple apart during the ordeal. According to the hospital, they were enforcing a policy based on Nevada law that required couples who are not married to have power of attorney before medical decisions could be made for each other.
Estate planning issues facing same-sex couples
The law is always changing, and even more so with regards to gay rights. In fact, there was a presidential order entered several years ago, requiring the Department of Health and Human Services to establish a rule preventing hospitals from denying visitation to same-sex partners. However, that executive order did nothing to help Simonelli and Leon, because the hospital was not a federal facility and doing so would violate Nevada statutes, putting the hospital and doctors at legal risk.
There is no doubt that the LGBTQ community will continue to face legal challenges, as the views of same-sex relationships continue to change and evolve in each state and the country. Leon and Simonelli decided not to file a legal complaint against the hospital. However, their situation is an important reminder of the issues still facing the LBGT community. Clearly, gay couples do not have all of the same rights under the state’s domestic partnership law. With gay marriage now legal, there is little doubt that a married person can make medical decisions for a spouse. Even so, it is a good idea to have appropriate medical directives in place.
Establishing the power to make medical decisions for your partner
State and federal laws dictate who can be given the power to make health care decisions for someone else, if they become incapacitated. However, most of these laws apply to, and often favor, couples who are legally married. There are several estate planning tools that can be used to give the authority to make medical decisions, on behalf of a same-sex partner, without recognition as a legally married couple. These tools are generally called advanced directives.
A durable power of attorney for health care is a document that gives someone you choose the power to make decisions concerning your medical care and treatment, in the event you are no longer able to do so. The authority you choose to give to your partner can include the power to consent to or withdraw from any type of medical treatment, even when death may result. A well-drafted durable power of attorney will prevent any hospital or health care provider from denying your partner the ability to make decisions for you. Instead, your wishes are written in a legal document, which is always the best evidence of your intent.
If you have questions regarding health care directives, or any other LGBTQ estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
To learn more, please download our free LGBTQ estate planning in Nevada report here.