Tools for Protecting Your Health Care Wishes
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Tools for Protecting Your Health Care Wishes In health care settings, the right documents will help make sure your wishes are respected. Health care providers are required to respect these documents, including those presented by same-sex couples. This change in policy came about in the aftermath of a tragedy, when Janice Langbehn’s partner of 15 years, Lisa Pond, collapsed with a brain aneurysm. Even though Janice faxed their health care proxy documents to the hospital, the staff denied Janice and the couple’s three children access to Lisa, who ultimately died alone. While Lambda Legal’s lawsuit on the family’s behalf was unsuccessful, the hospital ultimately changed its visitation policies as a result of the related advocacy campaign. After calling Janice to thank her for her bravery, President Obama directed the Department of Health and Human Services to promulgate policies requiring hospitals across the country to respect visitation and health care decision-making documents without regard for the sexual orientation or gender identity of patients and their loved ones. Please note: This document offers general information only and is not intended to provide guidance or legal advice regarding anyone’s specific situation. FIRST STEPS 1. Consider what you would want to happen in the event of a medical emergency. Who would you want to be by your side? What kinds of medical care or life-sustaining procedures would you want? 2. Give some thought to who’s the best person to understand what decisions you would make for your health care if you couldn’t make them yourself. This should be someone you trust who is willing to take on the job. Be sure to talk to this individual to make her or him aware of what you are asking. 3. For legal help, consult Lambda Legal’s Help Desk at 866-542-8336 www.lambdalegal.org/help or the other resources in the insert “Tools for Selecting an Attorney.” www.lambdalegal.org/takethepower TAKE THE POWER Tools for Protecting Your Health Care Wishes 2 DESIGNATING AN AGENT TO Why do I need this power tool? How it works: You create one or MAKE MEDICAL DECISIONS If you are in a serious accident more legal documents, which may or you become sick enough that be called a health care proxy (see TAKE THE POWER! Create a you can no longer make medical “Terms to Remember” on page 5 document to make sure that the decisions for yourself, you want the of this insert for all terms in bold), right person makes medical decisions person of your choice to be legally a durable power of attorney for for you when you can’t make them empowered to make those decisions. health care or a medical power of yourself, and that everyone knows If you do not take steps to designate attorney, depending on what state your wishes about key health the person you want to make these you live in. You are the principal, care decisions that could become decisions, you run the risk of health and the person you appoint to necessary. care providers turning to blood make medical decisions for you is relatives, who may be recognized the agent. The document should as legal next-of-kin, to make these say that medical personnel are complicated and personal medical authorized to release medical decisions for you. information to your agent under the federal Health Insurance Portability and Accountability Act (HIPAA), which mandates that protected health information be kept confidential. Note that you might need a separate HIPAA release in addition to a health care proxy. Not only do some health care settings require them; a HIPAA release may provide for more than one person, or a “class” of people, to access your information. Here are a few tips for creating and using a health care proxy. n The call your loved ones Janice Langbehn’s partner of 15 years, Lisa Pond, collapsed with a dread— you’re critically hurt brain aneurysm while the family was in Miami, Florida, for a cruise. or ill— often comes while Even after Janice had faxed their health care proxy documents to the they’re at work, school or hospital, the staff still denied Janice and the couple’s three children otherwise away from home. access to Lisa’s bedside, asserting that the family had no rights Most people will rush to your because they were “in an antigay city and state.” Tragically, Lisa died side, not go home for your alone. Lambda Legal sought redress for the Langbehn-Pond family; health care documents. Keep while the case was unsuccessful in court, the hospital ultimately in mind that even if you carry changed its visitation policies as a result of the related advocacy your documents with you, if campaign. And when President Obama called Janice from Air Force you are incapacitated you can’t One to thank her for her bravery in taking a stand, she realized that authorize access to any items her tragedy and courage had led to changes in national laws to ensure you may have been carrying. that hospitals across the country will be required to respect documents Many same-sex couples use for hospital visitation and health care decision-making, without regard satchels created for passports for sexual orientation and gender identity of the patient and their and airline tickets to carry each loved ones. other’s documents. You also can carry your documents in www.lambdalegal.org/takethepower TAKE THE POWER Tools for Protecting Your Health Care Wishes 3 digital form on your mobile need to make financial decisions phone or other handheld on your behalf—go beyond device or on a memory stick, those usually covered by a or you can register for a medical power of attorney or paid service that makes your other documents that grant documents available online limited authority. See insert from anywhere in the world. It “Tools for Protecting Your can be helpful to have copies Assets in Life.” A court should of any certificate of marriage look to such a designation if it or civil union, or domestic is asked to appoint a guardian partnership registration, and with authority to make the papers evidencing your legal full range of decisions for you, relationship to your children, though practice will vary from When Cindy Meneghin, a as well as your health care state to state. plaintiff in one of Lambda documents. Legal’s marriage equality n If you are transgender, you cases, was rushed to the n To make it easy for your agent, may want to add an instruction emergency room with family and friends to find your that your gender identity be meningitis, hospital staff at documents in a crisis, here’s an respected, to further empower first ignored her partner of 30 old trick: put your important your proxy to advocate on your years, Maureen Kilian. Terrified documents in a waterproof behalf, though health care of losing consciousness zipper bag in the freezer, and providers that receive any federal without Maureen in charge tell your loved ones that you’re funding (which is almost all of medical decisions, Cindy keeping them there— before an of them) are already required yelled, “She’s my partner!” emergency strikes. The papers not to discriminate on the basis several times. But that didn’t will be easier to locate in your of gender identity under the work, so she screamed, “She freezer than in a desk drawer or Affordable Care Act. has my power of attorney!” filing cabinet. That worked like a charm. LIVING WILL n Talk to your attorney about whether you should supplement TAKE THE POWER! Creating a more important if your loved one’s a health care proxy with a living will ensures that your wishes authority to carry out your wishes document (designation of about life-sustaining procedures will pre-need guardian) naming be honored, and that your loved is more likely to be questioned, the person you’d want to be a ones will have the information they as often is the case for unmarried “guardian” or”conservator” for need to advocate for your wishes. partners and friends with no legal you if you become incapacitated relationship. and your needs—such as the Why do I need this power tool? How it works: A living will is not You may feel strongly about whether For all documents, sign or not you want resuscitation or a last will and testament. It is your multiple copies so you have insertion of a feeding tube if you wishes in writing for what should extra originals in case health are in a persistent vegetative state or happen if you need certain medical care staff says a photocopy is likely to die soon. For good reason, interventions to stay alive. A living insufficient. Sign in blue ink in hospital settings it can be very will tells medical professionals and to reduce the chances that hard to block or end procedures that your advocates whether you wish health care staff will claim it’s keep a person alive. A living will to receive specified life-sustaining not an original. gives guidance about your wishes on treatment such as resuscitation, this very serious matter and is all the insertion of tubes for breathing or www.lambdalegal.org/takethepower TAKE THE POWER Tools for Protecting Your Health Care Wishes 4 feeding, and medication to relieve and long-term care facilities to cms.gov/Medicare/Provider- pain. Because it is guidance given respect a patient’s desires regarding Enrollment-and-Certification/ in advance, this document often is who may visit and may not deny surveyCertificationGenInfo/ called an advance directive.