I’ve had, and continue to have, a myriad of emotional and intellectual responses to the events that occurred in Orlando six weeks ago. One of the few, solid, intellectual responses I was able act upon, to feel that I was doing something useful, was to update my legal paperwork should something happen to me.
The last time I updated my Hospital Visitation Authorization, Medical Power of Attorney, Will, etc was 10 years ago in 2006. Since then I’ve gotten divorced and my wishes for those documents have changed but they have never been updated. These documents, however, are vitally important in emergencies, particularly for unmarried LGBT individuals.
I am not a lawyer, nor do I play one on TV or the internet. This is not legal advice and you should always consult with a lawyer for legal matters. If you trust a random blogger on the internet to give you legal advice, you should have your head checked.
This post is US-centric. I am totally unfamiliar with how these matters are handled outside of the US.
Now that’s out of the way…
Hospital Visitation Authorization
and Medical Power of Attorney
53 people were injured in Orlando and treated at local hospitals. Who could visit those individuals in the hospital, particularly patients unable to give consent due to their condition, is far from clear. HIPPA, the Health Insurance Portability and Accountability Act, restricts what patient information can be disclosed and to whom it can be disclosed. In general this is great in order to protect patient privacy, but in an emergency it can have the unintended side effect of preventing important information from being disclosed to people you want to know.
The day after the Orlando shooting the mayor of Orlando requested a HIPPA waiver from the White House in order to allow greater access to patient information. In this case the Department of Health and Human Services was able to issue a clarification making the waiver unnecessary.
What can you do to help ensure the right people have access to you and information about you in an emergency? The two documents you want to look at are:
- Hospital Visitation Authorization – This document provides explicit instructions about who is allowed to see you in the hospital.
- Medical Power of Attorney – This is a much more powerful document that gives specific people the power to make medical decisions on your behalf and to consult with doctors if you are incapable of doing so.
These documents are sometimes grouped together and called Advance Directives. Both of them are important for non-married people, particularly LGBT individuals, who may want someone besides their legal family from making medical decisions or visiting them in the hospital.
Examples of both of these documents are available online:
- Washington state residents should check out the Advance Directives page at the Washington State Medical Association website. They offer a PDF containing both a Durable Power of Attorney for Health Care and a Health Care Directive which can be used separately or together.
- For other states, the National Hospice and Palliative Care Organization provides Advanced Directive documents for every state.
Because you may need to access these documents in a hurry in an emergency, consider scanning in signed copies, uploading them to a private file-sharing service like Dropbox, and sharing them with the people who need access to them. Most private file-sharing services have mobile applications making access to these documents from an emergency room fast and simple.
Last Will & Testament
49 people1 died in the Orlando shooting. Who gets their belongings largely depends on if they have a Will2. If they have a Will, it will instruct the court in probate on who gets their belongings. If they do not have a Will, things get complicated quickly, especially if they were not legally married.
In most scenarios when you die without a Will, your estate goes to your legal family. For many LGBT individuals that may not be what you want. Even if you have been together with a partner for decades, if you die unmarried without a Will, the legal family of the deceased may get everything. Outside of getting legally married, a Will is the easiest way to make sure things work out like you want when you die.
Even if you are legally married, it’s a good idea to get a Will to ensure that if you and your partner both die, your estate goes where you want it.
There are many sample Wills online. I found this one from FindLaw a good starting point for when I updated mine.
There are a myriad of other documents you may want in place, such as:
- Declaration of Guardian – Specifies who is guardian of your estate and/or person in the case that becomes necessary.
- Disposition of Remains – Specifies who has power over how your body is handled after you die.
- Anatomical Gifts – Specifies your wishes for organ donation.
- Legal Power of Attorney – Specifies who can legally represent you, usually coming into force if you are unable to represent yourself.
Witnesses and Notaries
Most of these documents don’t need to be notarized, just your signature and possibly the signature of a witness.
If the document requires a notary, head to your nearest bank branch first. They will usually notarize something for you for free. Alternatively, most administrative assistants will also be able to notarize personal documents at your place of work for free. Some copy and print centers like UPS stores provide notary services for a fee.
If documents need to be witnessed, pick any two people who aren’t mentioned in the document. Note that if the document needs to be notarized that the witnesses need to be present to sign it in front of the notary. It’s my experience that banks do not allow their staff to be witnesses, so it’s best to bring your own witnesses if your document needs both.
I’m happy to be a witness for anyone in the Seattle area who needs one. Have pen, will travel.
Laws vary by state
Like almost everything in the US, laws governing all of the documents discussed vary state-by-state. Do some googling and see what requirements there are for the various documents in your state.
This isn’t about preparing for the next Orlando, it’s about being prepared for Life. Car accidents happen. Old age happens. And when those things, and others, do happen lets all be prepared so those we love can be in the hospital next to us and provided for after we die.
Thanks to Andrew Asplund for looking over this post before I published it and providing some very useful insights.
2 Retirement, investment, bank accounts, and insurance policies can bypass Wills and probate if they have payable-on-death (POD) / transfer-on-death (TOD) beneficiaries assigned. I hope to discuss these further in another blog post.