We intended to write this blog as a part of our LGBTQ+ Financial Health series (Part One: Challenges and Part Two: Overcoming Challenges.) With the Supreme Court’s overruling of Roe v. Wade a few days ago, it feels much more important to talk about advance directives, living wills, and powers of attorney. In his concurring opinion, Thomas bluntly stated that he would like to see rights granted to LGBTQ+ people, including same-sex marriage, contraception, sodomy laws, and other legal protections taken away, too.
That makes it even more important to talk about advance directives, living wills, powers of attorney, and other things LGBTQ+ people can do to protect our financial and personal autonomy in the case of illness or death.
An aside: I mean, we knew these rights were all on the threatened list, but Thomas wrote it out loud in his opinion. That feels big and scary to me, personally.
Content Note: I use anatomical and legal terms, discussion of illness and death, and potentially traumatic legal scenarios.
I use “same-sex marriage” rather than “marriage equality,” as disabled people don’t have full marriage equality. Due to income and asset caps, many disabled peoples cannot get married without financial penalties. We don’t have marriage equality until everyone has marriage equality.
Some Legal Background: Cases You Should Know
Thomas specifically mentioned Griswold, Lawrence, and Obergefell, but those aren’t the only cases that have carved out protections for LGBTQ+ (and other) folk. We’re going to concentrate on Obergefell v. Hodges today, but I will include information on other cases that are important to know.
Obergefell v. Hodges (2015)
Commonly referred to as “Obergefell.” 7 years ago today, as I write this, same-sex couples were granted the fundamental right to marry at the (USA) federal level AND ALL OF THE ENSUING RIGHTS AND RESPONSIBILITIES. These rights and responsibilities include, but are not limited to:
- ABILITY TO MAKE FINANCIAL AND MEDICAL DECISIONS ON BEHALF OF THE PARTNER
- opening joint bank accounts
- filing joint bankruptcy
- filing joint federal and state taxes
- tax deductions and exemptions on some income
- eligibility to receive reduced “marriage” rates for insurance
- healthcare access
- parental rights
- joint adoption and foster care
- legal status as a step-parent
- ability to consent for a child
- inheritance rights
- rights to sue for the wrongful death of a spouse
- right to receive spousal benefits, including Social Security, pensions, worker’s compensation, and disability
- includes relocation assistance for spouses of military and federal civil service personnel
- immigration sponsorship
- a share of marital property (amount varies by state)
- spousal privilege: you cannot be compelled to testify against your spouse
- fiduciary duty: spouses are legally supposed to be honest with each other about money
- rights upon the death of a spouse: next of kin status
- funeral and bereavement leave
- domestic violence protection orders
It also means that you may be legally responsible for your spouse’s actions, especially concerning debt.
Medical visitation rights are often attached to these rights as well. It is recent history that queer couples could be prevented from visiting each other during hospital stays.
NOTE: many marriage rights are regulated at the state level. I am also not an expert, nor am I a lawyer, and this blog should not be taken as legal advice. Consult a family law attorney if you need answers to specific questions. In Washington, QLaw does free 30-minute consultations. Nationally, you can find LGBTQ+ affirming attorneys through the LGBTQ+ Bar.
Lawrence v. Texas (2003)
Lawrence v. Texas ruled that criminalizing sodomy is unconstitutional. Before 2003, you had no constitutional right to have oral sex, anal sex, or penetration of anything other than a vagina by anything other than a penis. Before Lawrence, sexual acts between consenting adults were illegal in 14 states for same-sex partners.
You can bet we have some feelings about this.
Bostock v. Clayton County (2020)
This ruling affirmed that Title VII of the Civil Rights Act of 1964 protects gay and transgender folks from workplace discrimination. 2020, y’all.
Griswold v. Connecticut (1965)
Griswold gave married couples the constitutional right to purchase and use contraception without government restriction.
Eisenstadt v. Baird (1972)
Right to contraception for unmarried couples.
Carey v. Population Services International (1977)
Right to contraception for people aged 16 and up.
Back to “Marriage” Rights
Getting married grants you access to these rights relatively easily: pay for that marriage license, get married, file that marriage license, and boom! You now have more rights than you did before you filed.
If you’re not married, can’t marry all of your partners, don’t want to get married, or do not have the right to marry, you have options.
Unfortunately, these options can be harder, more time-consuming, and more expensive than getting married.
These are ways for people in queer, poly, and other relationships to grant each other legal rights.
For many of these documents, if you do not have them in place, are not married, and become incapacitated or die, the state will appoint someone as your legal guardian, representative, or executor. This person is often a (bio) family member. Unfortunately, for many of us, (bio) family members are not safe.
Powers of Attorney
A power of attorney allows someone else to make decisions on your behalf if you are incapable of doing so. There are multiple flavors:
Financial Power of Attorney (FPOA)
Authorizes someone to make financial decisions on your behalf. You may restrict this ability to specific circumstances, such as if you are severely ill or unconscious, or be broader, and include restrictions such as when you are out of town or have no restrictions at all. It can also go into effect immediately, in specific circumstances, or if you become incapacitated.
- Principal: you
- Agent: the person you are giving financial rights to
- Incapacitated: the principal is certified by one or more physicians to be either mentally or physically unable to make decisions
Medical Power of Attorney (MPOA)
Authorizes someone to make medical decisions on your behalf if you become incapacitated or cannot communicate your wishes. Unless you indicate what decisions your agent can/cannot make, they can make any medical decision on your behalf – even if it is contrary to what you would have wanted.
DPOA (Durable Power of Attorney): terminology used if a power of attorney remains effective if the principal is incapacitated
Advance Directives and Other Medical Forms
These documents specify your wishes but do not grant someone else the ability to make a decision on your behalf unless an MPOA is included in your advance directives.
An advance directive documents your wishes for health care at the end of your life if you are unable to make those decisions yourself or unable to represent yourself. They can inform your health care team and the person(s) with medical power of attorney about your wants.
They can include:
A living will documents your wishes about prolonging life and/or managing pain if you are in a coma or unresponsive.
Do not resuscitate (DNR)
A DNR lets your healthcare team withhold life-saving treatment. You can indicate what level of intervention you do or do not want.
Your advance directives can also include information on what you want to happen to your body after death.
Finally, a Last Will and Testament
A will explains how your property is to be distributed after death and who you want to be in charge of that process.
But How Do I Make These Documents Happen?
It depends on your state. There are many resources online for finding, downloading, completing, and filing these forms, but you may need witnesses, a notary, or a lawyer to complete and file them properly.
Where do I look?
Transgender Law Center has a great guide.
You can also start with finding your local LGBTQ Community Center: they may have programs to help you manage these documents.
Your doctor, clinic, or health insurance agency may have advance directive forms available.
A website such as Legal Templates can provide form templates applicable for your state (but we can’t guarantee how affirmative or correct any given online resource is.)
You can hire a lawyer to ensure your documents are legally sound and filed correctly, but going this route can be very expensive. Legal Aid clinics and programs may be able to help:
- Search for programs in your city, county, and state
- Contact a law school. Many schools have both general and LGBTQ-focused clinics staffed by law students.
- End of Life doulas may be trained in end-of-life planning documents and able to assist.
Who Gets A Copy?
- Your agent/executor
- Anyone named in your documents
- Other important people in your life
- For medical forms, your doctor
- For wills, your lawyer and the state
A polycule with four adults (two of whom are parents.)
Each adult creates and files:
- Medical Power of Attorney naming the individuals, in order, who can make medical decisions
- Financial Power of Attorney naming the individuals, in order, who can make financial decisions
- Advance Directives, with detailed information regarding what and what not to do medically, and when
- Final Will and Testament naming an executor, describing how property is to be distributed, how the body should be taken care of, and services or rituals should be conducted.. Also contains guardianship directives for the minor children.