Introduction:

Since the Defense of Marriage Act (DOMA) in 1996, all of the 1,138 statutory provisions of current federal law which relate to benefits, rights and privileges of married couples apply only to male-female couples. However, recent presidential executive orders under President Obama have called for institutions receiving federal funding to grant some rights, particularly those related to hospital visitation, to be extended to unmarried and same-sex couples.

Your rights to visit loved ones, make medical decisions on their behalf and participate in their treatment or recovery vary from state to state. The Federal Patient Self Determination Act (PSDA) requires that all Medicaid and Medicare providers educate adult patients as to their rights and remedies upon admission or enrollment in treatment, health care plans or programs. Hospitals and doctors often fail to thoroughly education patients about their rights to decide who will be able to visit them in the hospital or to make decisions for them should they become unable to make decisions for themselves.

Nearly every hospice, hospital, nursing home, HMO or home health agency is required under PSDA to educate patients. Compliance is increasing, though not yet consistent. It is important for couples, whether married, common-law or domestic partners to know their rights and to prepare adequate documentation prior to a health crisis or emergency.

The benefits extended automatically to married couples by hospitals and health care agencies, such as hospital visitation and healthcare decision-making, do not consistently apply to domestic partners or unmarried couples from state to state. If you wish to have these rights, you need to prepare several important documents:

1. A Hospital Visitation Authorization: This document gives legal permission for someone who isn't your legal next-of-kin to visit you in the hospital. Preparing this document in advance covers situations in which you may be unable to communicate your wishes to the hospital following an emergency admission.

2. A Living Will: If you wish to give a domestic partner, friend or common-law spouse the right to make health-care decisions for you, in the event you are incapacitated, you should prepare a living will with the help of an attorney. A living will specifies clearly what rights you wish to grant your spouse, partner or friend should you become incapacitated and unable to speak for yourself.

3. A Durable Power of Attorney: A durable power of attorney is a document that communicates how you want decisions made regarding your health care. A durable power of attorney fromally names someone that you trust to make decisions for you in the event you become incapacitated. A legal power of attorney is particularly important if you aren't legally married under the laws of your state or in the event your state does not recognize domestic partnerships. The durable power of attorney is commonly prepared as part of a package along with an advance directive and living will.

4. An Advance Directive: The Advance Directive or “health care directive” states your wishes with regard to medical care and may specific your directions with regard to heroic measures and quality of life issues. This summary document verifies who you wish to designate to make health care decisions for you if you are incapacitated.

If you change marital status through divorce or if you are widowed or separated, you should change or create the above documents naming a new person to make decisions on your behalf should you not be able to make those decisions. Don't delay in making changes in your health insurance and advanced directive package. You want no confusion should something happen to you. You do not want to wind up unconscious in the hospital and have, as the only person eligible to authorize medical intervention, be an angry, estranged, soon-to-be ex-spouse.

Hospital Policies:

Any hospital that takes federal funding, such as Medicare or Medicaid, is required to have written policies and procedures with regard to visitation rights of patients. They must also explain and define what are clinically necessary or reasonable restrictions with regard to access to the patient by family and friends. These policies must be available to patients and must:

1. Outline for each patient or their legal representative as to visitation rights, clinical restrictions or limitations to the patient's or spouse/legal representative's rights.

2. Explain the patient's right to receive the visitors he or she may authorize, including a spouse, domestic partner, family members, friends or other persons named by the patient. The hospital must explain that the patient has the right to withdraw or deny such consent-to-visit at any time.

3. The intake information provided to the patient must include a statement that the hospital or medical facility may not restrict, limit, or otherwise deny visitation according to the patient's wishes on the basis of race, religion, ethnicity, national origin, sex, sexual orientation, gender identity or disability.

4. The hospital then must take steps to ensure that, consistent with the patient's wishes, any and all visitors have full and equal rights of visitation consistent with the hospital's general visitation policies and visiting hours.

Summary:

The American Bar Association recommends all persons prepare the above packet of documents (Hospital Visitation Authorization, Living Will, Durable Power of Attorney and Advance Directive). This package of document is also know collectively as an Advance Directive, Directive to Physician, Medical Directive, Declaration Regarding Health Care, Patient Advocate Determination and Designation of Health Care Surrogate. The creation of an Advanced Directive provides for equal access to visitation rights by allowing you to designate any person as your surrogate with power to make health care decisions for you regardless of your form of marriage, domestic partnership or the relationship you share.

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