Note: In September of 2011, the Centers for Medicare & Medicaid Services released updated guidance on existing regulations to make it easier for family members, including same-sex partners, to make informed care decisions for incapacitated loved ones.

An advance healthcare directive is an individual healthcare instruction or a power of attorney for healthcare. Common names for types of advance healthcare directives include healthcare powers of attorney, durable powers of medical attorney, healthcare proxies and living wills. Advance healthcare directives honor the right of a competent individual to control the course of their medical care in all circumstances, as well as the corollary right to designate another person to make these choices in the event of the individual’s mental incapacity.

To ensure equal treatment of the LGBTQ+ community in the area of advance healthcare directives, the Healthcare Equality Index surveys participants on staff training related to the recognition of advance healthcare directives and their unique importance to the LGBTQ+ community.

The Unique Importance of Advance Healthcare Directives to the LGBTQ+ Community

The right of every American adult to create an AHD and the obligation of every hospital to honor these documents is critically important. Individuals place tremendous trust in their designated agents, who will guide medical care at a time of the individual’s incapacity. Default state medical decision-making laws are meant to provide a safety net for Americans who fail to execute advance healthcare directives. This default law provides a list of potential surrogate decision-makers from which healthcare providers select the patient’s default surrogate in the absence of an advance healthcare directive. These lists reflect the presumption that the most appropriate default surrogate is the spouse of the incapacitated individual. Due to the lack of relationship recognition laws in the majority of states, most same-sex couples are not protected by default surrogate-selection law.

Advance Healthcare Directive Policy Recommendations

Every validly executed advance healthcare directive deserves and legally demands recognition. Unfortunately, there have been tragic incidents involving hospital refusals to honor valid advance healthcare directives, simply because the directive involved same-sex couples.

Some of the most promising policies bearing on advance healthcare directive recognition for same-sex couples confront the obstacles that often hinder recognition of these advance healthcare directives. These best practices concern reciprocity and presumptive validity of advance healthcare directives, as well as the definition of designated agent.

• Reciprocity involves a hospital’s recognition of an advance healthcare directive that was executed in another state. Below are two examples of hospital policy language which treat advance healthcare directive reciprocal recognition:
  • A living will or other type of advance directive from another state, even though it does not meet the requirements of [HOME STATE], is legally valid and enforceable in [HOME STATE] if it satisfies the legal requirements of the state in which it was executed.”
  • “A patient may have completed an AHD in another state which follows that state’s law. Healthcare personnel should generally follow such an AHD to the same extent that they would follow one completed in [HOME STATE]. Questions about out-of-state AHD should be referred to your administrative manager or the administrator on call after hours.”
• Presumptive validity involves the presumption that a presented advance healthcare directive is valid in the absence of actual knowledge to the contrary. The following submitted hospital policy treats presumptive validity:
• “Ordinarily, all adult patients are presumed to be competent to execute and revoke a [AHD], and all [AHDs] are presumed to be valid, unless a court has determined otherwise.”
• “Who may serve as agent: any competent adult may be an agent, EXCEPT THAT: a [HEALTHCARE INSTITUTION] employee cannot be appointed as an agent during the patient’s hospitalization unless that administrator or employee is related to the patient by blood, marriage, or adoption.”
• Designated agent definitions involve delineating the persons who can be appointed as the designated agent in an AHD. State law is very consistent with these definitions. The following submitted hospital policy language treats designated agent issues:

The above policy language recommendations are not required for purposes of the Healthcare Equality Index. Many advance healthcare directive policies already express the institution’s commitment to follow all applicable state and federal advance healthcare directive law. These commitments would necessarily encompass the above legal concepts. The Healthcare Equality Index, instead, focuses on training related to advance healthcare directives.

Training on Advance Healthcare Directives

Healthcare facilities should provide training modules to staff that are specifically tailored to the special case of advance healthcare directives and same-sex couples.

These training modules should make explicit mention of LGBTQ+ individuals and detail the unique consequences that can result from a failure to recognize the advance healthcare directive of a same-sex couple. The training modules should reiterate the staff’s duty to follow all applicable state and federal advance healthcare directive law, especially in the areas of reciprocity, presumptive validity, and the definition of designated agents. Hospitals participating in the Healthcare Equality Index survey will be required to provide details of these training modules, including the content and frequency of these trainings, as well information about staff participation.