Beware the Generic Health Care Proxy: Potential Problems and Unforseen Consequences

Attorney Todd Ratner of the Western Massachusetts law firm of Bacon\Wilson recently wrote an article about the possible dangers of filling out a generic Health Care Proxy at a hospital or clinic. The message to clients: not all health care proxies are equal.

Potential Problems. Hospitals often encourage or direct patients to complete a generic Health Care Proxy upon arrival to an emergency room or in advance of an operation. While the boilerplate form supplied by a hospital is legally sufficient and simple to complete, it does not necessarily cater to your specific circumstances and needs.

Furthermore, your admission to a hospital is not necessarily the best time to consider and make decisions regarding a possible terminal illness or to consider and select your health care decision-maker. It is obviously better, if given the opportunity, to contemplate and make important health care decisions in a less stressful situation and prior to the occurrence of a stressful or emergency medical event.

It can also be a problem if you have already executed a Health Care Proxy as part of your overall estate plan, and you then hastily fill-out and sign the hospital form. Execution of the new form revokes your prior Health Care Proxy, thereby stripping you of the carefully thought-out intentions provided for in the prior, now revoked document.

A Well-Drafted Health Care Proxy. The best Health Care Proxies are not simply forms, but are powerful legal instruments that address your unique concerns and intentions. A well-drafted Health Care Proxy should address the following:

• Living Will Language: Whether or not you wish to be kept alive by machines in the event that independent physicians concur that you are in an irreversible coma or other terminal condition with no chance of recovery
• Organ Donation: Whether or not you wish to be an organ donor
• Creation or Burial: Whether or not you wish to be cremated or buried
• Burial Instructions: Where and how you wish to be buried
• HIPPAA Sufficient Language: Authorizing another to review, request, and receive your medical documents while you are incapacitated
• Statement Regarding Same-Sex Marriage: A provision that prevents a hostile jurisdiction or change of law with regard to your same-sex marriage from revoking the entire instrument

If you already have a well-drafted Health Care Proxy. If you already have a well-prepared Health Care Proxy, be sure to ask the hospital whether they require you to fill out their generic form. If they do not, then instruct them that they should consult your existing Health Care Proxy. If you have a well-drafted Health Care Proxy sitting in your home or office file cabinet, prepare a letter to your primary care physician instructing her to place the instrument in your medical file; they are required to do so by law upon request.

If you do not have a well-drafted Health Care Proxy. An experienced estate planning attorney can provide you with the alternatives and options available to make the document suitable for your situation so that you do not have to rely on a boilerplate form filled-out under less-than-ideal circumstances.

What is a Health Care Proxy?

Live Blogging from inside California Supreme Court on Proposition 8

The California Supreme Court hears arguments today on whether Proposition 8, the anti-gay-marriage initiative, should be upheld and, if so, whether the marriages of an estimated 18,000 same-sex couples should remain valid.

Follow the LA Times streaming blog reported from inside the California Supreme Court.

Massachusetts Married Couples File Federal Suit Challenging the Federal Defense of Marriage Act (DOMA)

Several married same-sex couples filed a lawsuit in Federal District Court in Boston on Tuesday, March 3, challenging the 1996 Federal Defense of Marriage Act (DOMA).

Specifically, the plaintiffs in Gill, et al vs. Office of Personnel Management, et al challenge Section 3 of the Act which overrides a state’s determination that a same-sex couple is married and says that they are not married for purposes of all federal laws and programs. Under DOMA, the word ‘marriage’ means only the legal union of a man and a woman as husband and wife, and the word ‘spouse’ refers only to an opposite sex husband or wife. The law suit does not seek to force states to recognize gay marriages performed in other states, but demands that the federal government treat all married couples, as defined by the states, equally under federal law.

The plaintiffs each allege they have suffered a real and tangible harm under DOMA, including: (i) the denial of a passport in married name; (ii) denial of income and other tax benefits; (iii) denial of retirement and pension benefits; (iv) denial of social security benefits, and other federal rights and protections.

According to GLAD:

The federal rights and protections denied to committed gay and lesbian married couples and surviving spouses include some of the critical legal safety nets that couples count on when they marry and that help them fulfill their responsibilities to one another as they plan their lives and futures, have children, cope with the loss of a spouse, and for which they contribute their American tax dollars. It harms them, their children and their other dependents.

According to Scott Wu, one of the lead GLAD attorneys for the Plaintiffs:

Our legal argument is that [the portions of section three targeted in the lawsuit are] a violation of our federal government’s guarantee to treat citizens equally by refusing to recognize the marriages only of same-sex couples, and that principle of equality should apply in other contexts if we’re successful," said Wu. While GLAD believes the suit stands a strong chance of reaching the Supreme Court, Wu said it was too soon to tell how long it might take to get there.

You can meet the various plaintiffs by clicking here.

Regina Spektor and the California Courage Campaign: "Please Don't Divorce Me"

The "Courage Campaign" has joined up with singer Regina Spektor and more than 18,000 married same-sex couples and their families in California to urge the California Supreme Court to strike down Proposition 8 as unconstitutional and restore marriage equality in California.

"Fidelity": Don't Divorce... from Courage Campaign on Vimeo.

The Supreme Court will hear oral arguments in this case on March 5, 2009, with a decision expected within the next 90 days.

To read the Courage Campaign's letter and sign the Petition to the California Supreme Court, click here.

Judge: New Jersey Recognizes Same-Sex Marriage for Purposes of Divorce

As reported by the Associated Press on February 6, 2009:

A state judge has ruled that gay marriage is recognized in New Jersey for the purpose of divorce.

The wider implications of Friday's ruling aren't immediately clear. But State Superior Court Judge Mary Jacobson says New Jersey has a long history of recognizing marriages that are valid where they were performed. New Jersey doesn't let gays marry but does allow civil unions, which extend the benefits of marriage to gay couples.

La Kia and Kinyati Hammond were married in Canada in March 2004 and lived in Maryland. La Kia Hammond says she needs a divorce recognized in Canada so she can marry another woman there.

The state has not said whether it will seek an appeal.

Barring an appeal of the ruling by the state, same-sex couples from states like Massachusetts, Connecticut, and California may also seek a divorce in the New Jersey courts.

Registrar of Motor Vehicles: Proof of Surgery No Longer Needed to Change Gender Marker on ID

According to a January 21, 2009 letter sent from Massachusetts Registrar of Motor Vehicles Rachel Kaprielian, individuals will no longer be required to provide proof of completed sex reassignment surgery in order to change the gender marker on driver's licenses and IDs.

Under the new policy, individuals will be allowed to specify the gender with which they identify without providing proof of sexual reassignment surgery or an amended birth certificate. In her letter, Kaprielian calls the changes "fair, reasonable and sensible".

According to the letter sent directly from Kaprielian to MassEquality's Marc Solomon:

"Under this new policy, it is no longer necessary to submit medical proof of sex reassignment surgery. The agency understands that this requirement is often very difficult, if not impossible, for many individuals to satisfy.

Under the new policy, an individual who wishes to change the gender marker will submit an updated application together with a Gender designation Change Form, signed by him or her and a medical provider attesting to the gender that the individual considers himself or herself to be.

In addition, the Registry of Motor Vehicles will no longer require an individual to provide an amended birth certificate in support of the new gender designation marker."

The RMV letter to MassEqualty announcing the new changes can be viewed here.

Columbia's Highest Court Grants Same-Sex Couples Equal Rights

As reported in the Latin American Herald Tribune January 30, 2009:

BOGOTA -- The Colombian Constitutional Court has recognized the civil, political, social and economic rights of same-sex couples.

The president of the high court, Humberto Sierra Porto, told reporters that to make possible the recognition of these rights, parts of the criminal and civil codes, as well as some parts of military regulations, will have to be modified. The ruling means that property of homosexual couples that is considered part of the family possessions, including the home, can not be embargoed or distrained.

On the other hand, if a foreigner enters into a same-sex union with a Colombian in Colombia, he or she may obtain Colombian citizenship if and when that union has been under way for more than two consecutive years. Members of same-sex couples cannot be forced to testify against their partners.

Regarding public officials, when one takes the oath of office, that person's same-sex partner - if any - will also take the office.

As reported by 365Gay.Com January 30, 2009:

(Bogota) Colombia’s Constitutional Court has upheld a lower court ruling that the government must provide same-sex partners with all of the rights that opposite-sex couples have. Last year, LGBT rights groups went to court seeking health and other government benefits. Last April, a lower court ruled that same-sex couples are implicitly covered under the constitution’s guarantee of equal rights for all citizens.

The ruling also said that to exclude same-sex partners would violate the principle of non-discrimination and human dignity as the expression of personal autonomy, protected by international law. The Constitutional Court decision means same-sex couples will have pension, survivor and property rights.

[...]

All legal progress made in the last five years in Colombia has been accomplished through decisions by the Colombian Constitutional Court.

"Until Death Do Us Part": Texas Denies Couple Gay Divorce

In a predictable move, the Texas legal system has just thrown out the case of a gay Dallas couple seeking to file for divorce. The petition, which was filed on Jan. 21 in Dallas County’s 302nd District Court, sets up a legal showdown over whether courts will grant divorces to same-sex couples who’ve married legally in another state.

Texas, which has a constitutional amendment defining marriage as the union between a man and a woman, doesn’t recognize the same-sex marriages of other states. In 2003, the state Attorney General’s Office ruled that a same-sex couple from Beaumont couldn’t use a Texas court to dissolve the civil union they obtained in Vermont.

Attorney Peter Schulte represents one of the the two men, who were married in Massachusetts in 2006, "My clients want to move on with their lives," Schulte said, "but they've got to do it so there's no financial or political burden left on them with having this marriage kind of sitting out there."

If the men were to attempt to file for divorce in Massachusetts, where they were married, the Family and Probate Court would also throw out their case, but for a different reason. Under these circumstances, Massachusetts requires that one party to the marriage establish residency for a period of 1 year in order to bring the marriage (and therefore, the divorce) within the jurisdiction of the court.

The Massachusetts residency requirement presumes that if neither of the parties to the marriage has lived in the state for at least 1 year, another state is probably the more appropriate forum for the divorce action. This presumption places an undue burden on same-sex couples, who often cannot obtain divorce in the state where they reside.

The ramifications of this legal dispute go well beyond the couple's own marriage. Same-sex marriage opponents in Texas are correct to assert that by allowing same-sex divorce, the courts are impliedly recognizing same-sex marriage. After all, one of the prerequisits for filing divorce in any state is that the parties did, indeed, have a valid marriage to begin with.

Peter Schulte, who represents the plaintiff, has stated that he will appeal the case and argue that the United States Constitution dictates that states must recognize valid out-of-state same-sex marriages for the purposes of granting divorce.

While this case is a first for Texas, it is not the first nationwide. Recently, a same-sex couple in Rhode Island was denied a divorce for the same reason. Another same-sex couple in Iowa was successful in obtaining a divorce from a local court there.

VT, NH & ME Consider Equal Marriage Rights Legislation

From the AP at Bay Windows on January 16, 2009.

According to a report by the Associated Press, and published by , State Sen. Dennis Damon (D-Trenton) said he is introducing a bill to rewrite Maine’s existing statute that defines marriage as between one man and one woman, instead defining it as a union between two people. In addition, it recognizes gay marriages from other states.

"Currently there is discrimination. Heterosexual couples who have decided to spend their lives together are treated differently than same-sex couples who have ... that same commitment to each other," Damon said. "I don’t see the fairness of that. I don’t see the need for that, and this bill will put an end to that."

Maine currently has a domestic partnership registry that’s open to same-sex couples. But that’s not enough for gay marriage supporters. Damon says it’s time to "fully end discrimination in Maine."

In New Hampshire, a bill has been submitted to the legislature to replace the term "civil union" with "marriage" in the state's 1-year-old civil union law. Vermont, the first state in the nation to permanently establish civil unions is now also likely to consider a gay marriage, or marriage equality, bill.

Currently, full same-sex marriage rights are recognized in only Massachusetts and Connecticut. New Jersey, California, New Hampshire, and Vermont currently have civil union statutes.

Changing Your Legal Documents to Reflect Your Sex: Part 5 of 5

Part 5 of 5: Obtaining a New Massachusetts Driver's License.

For a relatively nominal fee of $15.00, an individual can request that the Registry of Motor Vehicles issue a new driver's license which reflects their appropriate name and sex designation. It should be noted that an individual need not change his or her name in order to change their sex designation.

Name: The applicant must go in person to the local Registry of Motor Vehicles to request a change of name on their license (a list of local Registry branches can be found here). The applicant must present the clerk with (a) old license, (b) paperwork certifying your new name, and (c) the new name, as found on the individuals social security card.

Sex Designation: In order for an individual to change the sex designation on his or her license, he or she must provide the following (a) a notarized physician's statement indicating completion of sex reassignment surgery, (b) paperwork certifying your new name, and (c) an amended birth certificate.

It might be helpful to review the Massachusetts RMV's Application for Change of Information prior to going into your local branch. For additional help, information and support, visit the Massachusetts Transgender Political Coalition website.