LEGAL TERMS AND DOCUMENTS
If legal paperwork is not established, domestic partners are not be recognized as legal next of kin and the hospitals and courts look to the closest biological family member to make health care decisions. If an LGBT person becomes ill or dies, decisions about financial assets and the living arrangements of children will not be respected unless they are legally documented. Knowing this is especially critical for gay, lesbian, bisexual and transgender people.
Listed below are important legal documents which can ensure that the rights of LGBT families are protected. Other documentation that can help make your family more secure and that establish the intention to be family is also listed, but some of these may or may not be legally recognized.
Power of Attorney A Power of Attorney form is a document that authorizes another person to act on behalf of the individual granting the power of attorney. The Durable Power of Attorney allows a person to determine who will have the legal authority to act for him or her should the time ever come when they cannot make decisions for themselves. With a Power of Attorney a partner can pay bills, deposit checks, handle taxes, sell stocks, invest in securities-in short, everything that a legal spouse would be allowed to do.
Health Care Proxy A Health Proxy is a form used exclusively for authorizing another person to make medical and health care decisions when someone is no longer capable of making decisions for themselves. The designated person will be able to make all health-care decisions including the type of treatment, location of treatment, and in addition, the right to refuse or decline life prolonging treatment. A health care proxy instructs medical personnel to follow the medical guidelines that the incapacitated person would have preferred.
Living Wills A living will insures that if a person should become terminally ill or have a serious accident and does not want extraordinary measures used to prolong their life, that no life-saving procedures will be performed.
Last Will and Testament A will is a complex legal document that insures that the wishes of the deceased will be carried out. If a person dies without a will, it is the state and not the person or his or her family that determines how the estate is distributed. The courts could make decisions regarding the distribution of money, belongings, and property and the guardianship of children that are in direct opposition of what the person may have wanted. Having a will is the only way to insure that family members are financially cared for, and minor children remain in the custody of a parent who is not legally recognized.
Second Parent Adoption A second-parent adoption extends legal parental rights to the non-biological or non-adoptive co-parent. These are available in New York State, following approval by a social worker, and as long as the child only has two legal parents. The sex of the two parents is not taken into consideration when completing a second parent adoption.
Domestic Partnership Registration-Some localities have domestic partnership registration, which has few direct legal or financial benefits, but can establish your intentions to be viewed as a family. This may be used as documentation to register for spousal health insurance benefits.
Temporary Guardianship This paperwork allows a non-legal parent to be treated as a legal parent in medical emergencies. If a spouse does not have legal rights to a child that they are parenting, it is essential to carry legal paperwork at all times, establishing the right to act "as" a parent.
Co-parenting agreement A co-parenting agreement is a document that explains the rights and responsibilities of each parent where a second-parent adoption is not available. These are very helpful to assist in custody related decisions should a couple split up, and can serve to protect the rights of a non-biological/non-adoptive parent.
Sperm Donor Contract These contracts serve to establish the intentions of the sperm donor and the biological mother in their parenting roles. Some sperm donors give up all legal rights to the child, others serve as an "uncle," or non-custodial parent. Many donor contracts have not held up in the court system, when custody has been challenged.
Rainbow Access Initiative is a 501(c)3 tax-exempt organization.
These materials were produced through a grant from the New York State Department of Health.
You may not use them without the written permission of Rainbow Access Initiative, Inc.
Permission may be obtained by contacting the Director.