On 15 April 2010, President Obama extended the right of a patient to designate hospital visitation to persons not legally related to the patient through a legally valid advance directive, such as a durable power of attorney or a health care proxy. This new right will apply to any hospital receiving Medicare or Medicaid funding. President Obama ordered the Secretary of Health and Human Services to draft new rules for hospitals that receive any Medicare or Medicaid funding. Persons most affected by this new mandate are unmarried couples including same-sex couples, widows and widowers without children, and persons belonging to religious orders.
According to newspaper reports, President Obama was deeply moved by the case of Janice Langbehn whose partner of 18 years died alone in a Florida hospital while they were on vacation with their adopted children. Langbehn sued the hospital over visitation rights in federal court, and in September of 2009 the U.S. District Court for the Southern District of Florida dismissed the suit on the grounds that “the hospital has neither an obligation to allow their patients’ visitors nor any obligation whatsoever to provide their patients’ families, healthcare surrogates, or visitors with access to patients in their trauma unit.”
How does this new mandate affect persons living in New York? Public Health Law § 2965 currently gives the same-sex partner of an incapacitated person the right to make medical decisions on behalf of the patient. But there is an important distinction under that law: the same-sex partner has the right as a “close friend” and not as a life partner. That means that, under the current statute, the decisions of close relatives such as parents, siblings, and adult children trump the decisions of the patient’s intimate life partner. The Obama mandate will grant the patient the right to designate his or her life partner and give that person the same rights over medical directives that a spouse or close relative currently holds. That means that the decisions of the designee will no longer be in a position to be countermanded by family members who may not know the patient’s wishes as intimately as the partner.
As to hospital visitation in New York, Public Health Law § 2805-q. already grants this right to registered domestic partners, whether gay or straight. In New York City, domestic partnership registration is handled through the office of the City Clerk. The requirements for domestic partnership registration are listed on the City Clerk’s website, and the forms are also available online. The website also lists the rights granted to the holders of the certificate of domestic partnership including “visitation in facilities operated by the New York City Health and Hospitals Corporation.”
In addition, in 2002 the City Council passed a bill that conferred New York City domestic partnership status to registered domestic partners, members of civil unions or gay marriages from other jurisdictions who move to New York City. The new law eliminated the prior one-year waiting period for these couples or the cost and time associated with re-registering in order to access the benefits conferred immediately on resident domestic partners.
President Obama’s new mandate still requires that the designation of visitation rights to someone not legally related to the patient be through a legally valid advance directive such as a health care proxy. In New York, a durable power of attorney is not sufficient for health care directives. New York requires a health care proxy form. New York State provides this form online. Appointing someone as your health care agent takes serious consideration, and I encourage you to discuss the issues with your attorney. In addition, New York’s Public Health Law § 2981 requires certain formalities: that a health care proxy be signed and dated by the adult in the presence of two adult witnesses who must also sign the proxy.
Finally, it is well to note that a health care proxy is not a living will. A living will sets out in clear language your wishes and instructions about your health care. But because no one can know with precision the scope of health care decisions that may arise, the appointment of a health care proxy should be strongly considered when drafting a living will. In my opinion, both documents are essential components of any estate plan and should be reviewed yearly to be sure that the directives and the agent still meet your needs and wishes.
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