Planning. Most of us know we need to do it, but we put it off. And off.
What if you were to be injured or become sick and unable to make decisions about your health care or manage your finances? You’d probably want your partner to step in and take care of things. Unlike married couples, same-sex couples have no legal rights or protection without clear legal documents that spell them out.
To be certain that medical and financial decisions stay in the hands of your partner, you need to prepare the right legal documents. In Illinois these documents are known as: a power of attorney for health care, a living will and a power of attorney for property.
Health Care and End-of-Life Issues
Often doctors and other medical providers will look to a family member as defined by state law to make medical decisions for you if you can’t do so for yourself. Most states give that authority to a legally recognized spouse, adult children, parents and other blood relatives. Unless you have a power of attorney for health care that appoints your partner to make these decisions, she or he has no authority to do so. Often times, biological family members can, and do, exclude same-sex partners from decisions. This document can give your partner other rights, including:
- visiting you in the hospital or other facility even when other visiting is restricted;
- hiring and firing medical personnel or moving you to a different facility;
- making decisions about your medical care if you become incapacitated;
- dmaking end-of-life decisions.
A living will acts as your written directions to medical personnel about whether you want death-delaying procedures used if you have a terminal condition and are unable to communicate your wishes. This document can provide a clear statement of your wishes in the event that your biological family has different views and/or does not want your partner making decisions.
In Illinois, the Health Care Power of Attorney and the Living Will are created and authorized by statute in the Illinois Powers of Attorney for Health Care Law, 755 ILCS 45/4-1 et seq., and the Illinois Living Will Act, 755 ILCS 35/1 et seq.
Finances
The Statutory Short Form Power of Attorney for Property Law, 755 ILCS 45/3-1 et seq., allows you to name someone you trust to handle your finances and property if you are unable to do so. If you want your partner to have access to your finances and be able to pay bills or even sell your house if necessary, you should seriously consider having a power of attorney for property. This is especially true if your partner and you have combined your households or intermingled your finances for a long time.
You can give your partner (or other agent) as much or as little control over your finances as you want. Some of the issues may include:
- using your assets to pay your bills and everyday expenses;
- handling your checking account or other transactions with banks and financial institutions;
- buying or selling real estate or other property;
- operating your small business.
Powers of attorney for health care and for property can be made effective immediately, or you can specify that they go into effect only if you become incapacitated or on a certain date (a “springing” power of attorney.) This is a very personal decision. Making the document effective immediately has its benefits for couples in long-term, trusting relationships. A document that is effective immediately means that your partner can handle your affairs for you at any time, such as if you’re out of town or just not feeling well.
Planning. No one can do it for you. Failing to plan could have lasting effects on your future and that of your loved ones. Think about it. Talk about it with your loved ones. Make the time to create the legal documents that will ensure that you control who makes health care and financial decisions for you when you can’t.