The Importance of Creating a Health Care Power of Attorney for Same-Sex Couples

A health care power of attorney is a document that everyone should take the time to create.   The need for this vital document is especially pressing for same-sex couples.  Few decisions are as personal, or as important, as how one chooses to proceed with their health and medical care.  In the event that you become incapacitated and are unable to communicate your wishes, another person will be making those decisions on your behalf.  If you do not take the time to memorialize who you choose as a proxy, the state may do so for you.

For instance, under Arizona and New Mexico law, if a patient is unable to make or communicate health care treatment decisions, a health care provider must make a reasonable effort to locate and follow a health care directive. The provider must also make a reasonable effort to consult with a surrogate.  So, what does all of that mean for same sex partners?

It means that a same sex partner in Arizona may make medical decisions for an incapacitated partner under A.R.S. § 36-3231. A partner would fit into the statute as a “close friend,” which is listed as number six in order of priority.  A close friend is defined as “an adult who has exhibited special care and concern for the patient, who is familiar with the patient’s health care views and desires and who is willing and able to become involved in the patient’s health care and to act in the patient’s best interest. “  Under the Arizona statute, a patient’s spouse, any adult child, any parent, and a patient’s siblings would serve as a medical proxy ahead of “close friend” by statute.   Most couples would prefer that their partner should have the first say in such affairs, even before their family members.  However, because same sex relationships are not legally recognized by the states of Arizona or New Mexico, it is important to take matters into your own hands by creating the necessary documents to ensure your partner can make those decisions for you.

To take control of this decision, you should create an advanced health care directive appointing another adult to make your medical decisions.   We do also recommend creating the other various power of attorney documents in order to ensure your partner can make financial, medical and general decisions on your behalf if needed.  Keep in mind, that without a proactive effort, the state may make the decision for you.

For more information or to create your power of attorney documents, call our office today at 888.222.1328 to schedule your free consultation with one of our qualified estate planning attorneys!

Contributed by MH Phoenix and Avondale Estate Planning Attorney Andrea Claus

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The attorneys at Morris Hall have 100’s of years of combined experience ensuring that families’ assets are protected from probate, unnecessary taxes, creditors, ex-spouses and Medicaid spend-down.  The attorneys also help those in Arizona and New Mexico to apply for and receive Medicaid assistance and Veterans Benefits.  Our Arizona offices are located in Phoenix, Mesa, Scottsdale, Cave Creek, Tucson, Prescott, Flagstaff and Arrowhead.  Our New Mexico offices are located in Albuquerque, Las Cruces and Santa Fe.  Contact us today at 888.222.1328 to schedule an appointment!

This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.  If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.