Skip to main content

LGBTQ+ Advance Healthcare Planning

LGBTQ+ Rights & Gender Identification

This article discusses advance healthcare planning for the LGBTQ+ community, including advance directives, medical power of attorney, durable power of attorney, and living wills among other options.

What is advance care planning?

Advance care planning means thinking about what medical care you’d want if there were an emergency. You can also think about who else you would want to be involved in your care if you become unable to make your own decisions or tell others what your decisions are.

You can use legal documents called advance directives to write out your choices and make them official.

 

Why should I do advance care planning?

Everyone should do advance care planning, but it can be especially important for LGBTQ+ people. 

If you don’t make your own decisions or choose who you want to make decisions for you, under Texas law the following people (in order of preference) will get to make your medical decisions: 

  1. Your spouse,

  2. Your adult children,

  3. Your parents,

  4. Your next closest relative, or a clergy member or physician. 

This default is fine for some people, but not for others. There are many reasons LGBTQ+ people may want to choose different supporters.

LGBTQ+ people are less likely to be married.  Without a spouse, your family would make your medical decisions. LGBTQ+ people are also more likely to face family rejection because of their sexual orientation or gender identity.  If you don’t want your family to make your medical decisions, then you will need to choose someone else.

 

Is advance care planning still a good idea if I’m married and have a supportive family?

Even if you are married and have not been rejected by your family, there are still good reasons to do advance care planning:

  1. If you are married, it would be good to do advance care planning in case something happened to you and your spouse at the same time.

  2. Advance care planning can be good for people who may not be living near their family, like college students. 

  3. The people in your life may not know your healthcare preferences or may be too worried or stressed to make the decisions you want. 

Advance Care Planning Example 1

Here is an example that shows how important it can be for you to do advance care planning and choose your supporters.

Patrick and Brett were life partners of over 25 years. At the time, same-sex marriage was banned in their home state of Indiana, so they were not married. Patrick’s own family refused to accept him, believing that “homosexuality is a grievous sin and that Brett and his relatives [were] sinners and [were] evil for accepting Brett and Patrick’s relationship.”

While on a business trip to Georgia, Patrick had an aneurysm. He then had a stroke while he was recovering in the hospital. Both Brett and Patrick’s biological family flew to Georgia to be with him. But, since Patrick and Brett weren’t legally married, Patrick’s biological family were able to make his medical decisions—including decisions about his visitors. They banned Brett from visiting Patrick and later transferred Patrick to a nursing home in Indiana. 

Brett continued trying to visit Patrick, so eventually Patrick’s biological family moved him back in to their family home. Patrick’s family later got a guardianship over him so that they could make all of Patrick’s legal decisions. Guardianship law also has a strong preference for family, so the judge appointed Patrick’s mother and father as his co-guardians, even though his mother “told Brett that if Patrick was going to return to his life with Brett after recovering from the stroke, she would prefer that he not recover at all.” The judge only scheduled Brett to have limited visiting time with Patrick.

Using advance care planning, Patrick could have chosen Brett to make his medical decisions. Patrick could also have stated his preference for a guardian in advance—making it much more likely that Brett would have been appointed his legal guardian instead.

 

Advance Care Planning Example 2

Jennifer Gable was a transgender woman who unexpectedly passed away from an aneurysm. However, her friends were shocked when they showed up at Jennifer’s funeral, which was being managed by her family. Jennifer was misgendered, presented as masculine in a suit, and referred to by her old name even though she had legally changed her name. In fact, the obituary completely left out the last 10 years of Jennifer’s life when she had begun to affirm her gender identity. 

This has happened to transgender people in several instances nationwide, where memorial services and sometimes even death certificates have not reflected their identity.  Like Patrick, this may mean that their family members had taken over their medical care as well.

 

What are advance directives?

Adults can use legal documents called advance directives to make their advance care planning official. In general, your healthcare provider must follow your advance directives or must try to transfer you to another provider who is willing to follow them.  There are many advance directives that address different types of decisions and some take effect at different times. 

Advance directives used in Texas are discussed below, including:

•    Medical Power of Attorney

•    Hospital Visitation Authorization

•    Durable Power of Attorney

•    Directive to Physician and Family or Surrogate 

•    Out-of-Hospital Do Not Resuscitate

•    Declaration for Mental Health Treatment

•    Declaration of Guardian

•    Wills & Estate Planning

•    Appointment for Disposition of Bodily Remains

 

What is a medical power of attorney?

With a Medical Power of Attorney (MPOA), you can choose someone else to make your medical decisions if you become unable to make your own. The person you choose is called your agent.

Who can be an agent in a medical power of attorney?

You can choose almost anyone to be your agent, but they should be someone you trust. However, your agent cannot be your healthcare provider, your residential care provider, or anyone who works for one of your providers.  The one exception is for relatives. Your relative can still be your agent, even if they work for one of your providers.

What can an agent do in a medical power of attorney?

Your agent should make the decisions they know you would want them to make.  If they don’t know what decision you’d want them to make, then they can make whatever decision they think is in your best interest.  So, even if you choose an agent, it’s still good to have a detailed conversation with them about your medical preferences.

NOTE—Under an MPOA, your agent cannot make any decisions about: 

  1. voluntary inpatient mental health services, 

  2. convulsive treatment, 

  3. psychosurgery,

  4. abortion, and 

  5. cannot neglect you by taking away care for your comfort. 

When does a medical power of attorney go into effect?

The MPOA only goes into effect when a doctor decides you can no longer make your own medical decisions. Imagine a light switch. If you can’t make your own decisions, the switch is “on” and your agent can make decisions for you. As soon as you can make your own decisions again, the switch turns “off” and you make decisions for yourself again. 

You can also cancel your MPOA at any time, either verbally or in writing.  Even if a doctor has decided you can’t make decisions, you can still say no to any medical care your agent chooses for you.  Making a new MPOA will also cancel your old one. 

 

What is required for a medical power of attorney to be legally effective?

In order to be legally effective, you must either sign your MPOA in front of a notary or have two witnesses sign it with you.  If you sign with witnesses, they must both be adults and at least one witness needs to be someone other than the people in the following list:

  1. Your agent

  2. A relative (by blood or marriage)

  3. Any person entitled to inherit from you or make a claim against your estate

  4. Your attending physician

  5. An employee of your attending physician

  6. Other employees of a health care facility where you are a patient. 

If you are physically unable to sign your MPOA you can also ask someone else to sign your name for you, but they must sign your name while they’re in front of you. 

 

What about hospital visits?

Texas law does not specifically say who can visit you or go with you to appointments at a hospital. Hospital staff may not recognize or understand your relationships, which can make it hard for them to know who should be able to visit you.

However, under federal law, any hospital that receives federal funding must let you choose your own visitors.  You can also choose someone else to make decisions about who can visit you, in case you become unable to make your own decisions.  This law has some important LGBTQ+ protections. It specifically allows you to designate a same-sex domestic partner as a visitor or as your support person,  and prohibits hospitals from discriminating on the basis of gender identity or sexual orientation. 

We have created a custom template that you can use to make your own Hospital Visitation decisions. You can also contact an attorney about preparing a document for you or adding hospital visitation decisions in with your other advance directives. 

 

What is a durable power of attorney?

Like a Medical Power of Attorney, you can use a Durable Power of Attorney (DPOA) to choose an agent to make decisions for you. The MPOA is only about medical decisions, but the DPOA can cover a wide variety of other types of social or financial decisions.

Texas law has a sample DPOA, attached in the Appendix. You can read more information about DPOAs in the Texas Estates Code, Chapter 752. A DPOA is a powerful document that can give someone else a lot of control over your life. If you have more questions about the DPOA, or want help making one, you can contact an attorney for advice. See the Appendix for information about attorneys and legal services providers. An attorney may also be able to write a customized DPOA or special powers of attorney to fit your specific needs.

 

What is a Directive to Physician and Family or Surrogate (Living Will)?

The Directive to Physician and Family or Surrogate, also called a Living Will, allows you to make decisions about end-of-life care. Even if you have a Medical Power of Attorney, it is useful to have a Living Will because it can be incredibly difficult for your supporters to have to make end-of-life decisions for you. 

With a Living Will you can choose whether you want to continue or stop certain treatments if you have either a terminal or irreversible condition.  If you have questions about what types of conditions or what types of treatment a Living Will would cover, you can talk to your health care provider.

When does a living will go into effect?

The Living Will only goes into effect if a doctor certifies that you’ve been diagnosed with a qualifying condition and decides you can’t make your own decisions. Like the MPOA, if a doctor decides you can’t make decisions, you can still change your mind about what treatment you do or don’t want.  This is true, even if you originally chose something else in your Living Will. 

NOTE: Under Texas Law, life-sustaining treatment cannot be withdrawn from pregnant patients.  If you have a Living Will that asks medical providers to stop treatments, they cannot follow your Living Will until you are no longer pregnant.

What is required for a living will to be legally effective?

To be legally effective, you must either sign your Living Will in front of a notary or have two witnesses sign with you.  Like the MPOA, the same rules apply if you sign with witnesses. They must both be adults, and at least one witness needs to be someone other than the people in the following list:

  1. Your agent

  2. A relative (by blood or marriage)

  3. Any person entitled to inherit from you or make a claim against your estate

  4. Your attending physician

  5. An employee of your attending physician

  6. Other employees of a health care facility where you are a patient. 

If you’re unable to sign a written Living Will, you can also make your Living Will verbally in front of your attending physician and the two witnesses you would have had sign the written document.  You can cancel your Living Will at any time either verbally or in writing, or by destroying it. 

 

What is an Out-of-Hospital Do Not Resuscitate Order?

You can use an Out-of-Hospital Do-Not-Resuscitate Order (OOH-DNR) when you’re outside of a hospital to tell emergency health care professionals not to start or continue certain life-saving procedures and allow you to have a natural death. These procedures include CPR, advanced airway management, defibrillation, artificial ventilation, and transcutaneous cardiac pacing.  If you have questions about these treatments or when they might be used, you can talk to your health care provider.

NOTE: Like with the Living Will, life-saving treatment cannot be withheld from pregnant people.  Even if you have an OOH-DNR, health care professionals cannot follow it until you are no longer pregnant.

 

What is required for an Out-of-Hospital Do Not Resuscitate Order to be legally effective?

The requirements for making your own OOH-DNR are the same as for MPOAs and Living Wills. You must either sign in front of a notary or in front of two adult witnesses, one of whom must be someone other than the people in the following list:

  1. Your agent

  2. A relative (by blood or marriage)

  3. Any person entitled to inherit from you or make a claim against your estate

  4. Your attending physician

  5. An employee of your attending physician

  6. Other employees of a health care facility where you are a patient. 

If you’re receiving in-patient care, you can also make an OOH-DNR by asking your attending physician and two appropriate witnesses to sign it for you. 

If make an OOH-DNR, you can purchase an optional means of identification (such as a vinyl or metal bracelet) so that health professionals know they should not use these treatments on you. 

You can cancel your OOH-DNR at any time either verbally or in writing, or by destroying it.  If you purchased an OOH-DNR identification device, you would also need to take it off. 

 

What is a Declaration for Mental Health Treatment?

The Declaration for Mental Health Treatment (DMHT), also called a Psychiatric Advance Directive (PAD), is meant to be used by people who are at risk or have a history of psychiatric hospitalization. 

It allows you to make decisions in advance about three types of mental health treatment: 

  1. psychoactive medication, 

  2. convulsive therapy, and 

  3. emergency mental health treatment.

Psychoactive medication is any medication meant to help with your behavior, thoughts, or mood, such as antipsychotics, antidepressants, and antianxiety meds.  

The most common type of convulsive therapy is electroconvulsive therapy, or ECT, but may include other types of treatment such as Transcranial Magnetic Stimulation (TMS).

Emergency mental health treatment refers to restraint, seclusion, and medication.  Psychiatric hospitals may be able to use emergency treatment on you if they believe you are an imminent risk of harm to yourself or others.  

If you have more questions about any of the treatment covered by a DMHT, you can ask your health care provider.

 

When does a Declaration for Mental Health Treatment go into effect?

The DMHT does not immediately become legally binding once you make it. A DMHT is not legally binding unless a judge decides you are incapacitated,  meaning the judge thinks you are unable to understand the risks and benefits of treatment and to make rational decisions about your care.  But even if your DMHT is not legally binding, you could still use it informally to communicate your preferences to your healthcare providers.

What is required for a Declaration of Mental Health Treatment to be legally effective?

A DMHT must either be signed in front of a notary or two witnesses.  If you sign in front of two witnesses, those witnesses cannot be a relative, a care provider, or anyone entitled to inherit from your estate.  

A DMHT expires after 3 years, so if you want to keep using it you will need to make a new DMHT every 3 years.  However, remember that the DMTH does not become legally binding unless a judge finds you incapacitated. If a judge finds you incapacitated, your DMHT will stay in effect until you are no longer incapacitated.  This is true, even if you’re incapacitated at the time the DMHT would have expired. If you want to keep using a DMHT once you have capacity again, you would need to make a new one.

If you have more questions about DMHTs or how to prepare one, or if you want to customize a DMHT, you can contact an attorney.

 

What is a Declaration of Guardian?

A guardian is a person who has the legal authority to make some or all decisions for another person. For example, children are usually under the guardianship of their parents. A judge may also place an adult under a guardianship if they become unable to provide for their basic needs (like food, clothing, health, and safety) and there are no other supports available to help the person meet those needs. 

There are two types of guardians—guardian of the person and guardian of the estate. A guardian of the person makes day-to-day decisions about your care. A guardian of the estate manages your finances and property. 

If you’re worried about who could become your guardian, you can use a Declaration of Guardian to choose in advance who you would want your guardian to be.  You can choose different people—one to be guardian of the person and one to be guardian of the estate—or one person can do both. If you have a child or you are already the guardian of another adult, you can also choose who you would want to be their guardian should you pass away or become unable to make decisions. 

A Declaration of Guardian doesn’t guarantee that the person you want will be appointed guardian. That decision is up to a judge, but the judge will give your choices a lot of weight.  You can also use a Declaration to disqualify someone from becoming your guardian. A judge cannot ignore that preference. If you disqualify someone, they cannot be appointed as your guardian. 

 

How do you make a Declaration of Guardian?

There two different ways to make a Declaration of Guardian. You can make a Declaration entirely in your own handwriting and sign it in front of a notary, or you can make a Declaration by signing it with two witnesses in front of a notary.  

If you’re not disqualifying anyone from being a guardian, you can use either option. If you do want to disqualify someone, you cannot use the handwritten option. You should sign your Declaration in front of two witnesses and a notary.

Most Declarations of Guardian will have a Self-Proving Affidavit attached. If your Declaration is “self-proved” it means your preferred guardian shouldn’t have to give the court any extra evidence that you made your Declaration correctly.  By following the signing requirements above, you should be able to make a self-proving Declaration that will be better protected from legal challenges later. 

You can revoke a Declaration of Guardian either by making a new one or by destroying your old one. 

NOTE: Guardianship of adults is a last resort. Other alternatives must be tried first before a judge could place you under a guardianship. In fact, other advance directives, like an MPOA and DPOA, can help you avoid an unnecessary guardianship. 

Why are wills and estate planning important?

When you pass away, your property will go to other people. You can use a will to choose the people you want to receive your property. There are also many other ways to handle estate planning, some of which may help your estate avoid the probate process and save your survivors time and money.

If you don’t want your family making your medical decisions, you might not want them to inherit your property either. If you have any assets or resources, you should consider doing estate planning with an attorney.

 

What is Appointment for Disposition of Bodily Remains?

As another part of end-of-life planning, you can make an Appointment for Disposition of Bodily Remains. With this appointment, you can choose a specific person and tell them what you want to be done with your body after you pass away.  This may include choices about how you want them to hold any funeral or memorial service. 

Note that the agent you name must agree to be responsible for the costs of disposing of your body, whether that is burial, cremation, or something else.  If you have insurance or other resources, your insurance policy or estate may be able to pay these costs instead.  Your agent may also be able to ask for reimbursement from your insurance or estate for costs they had to pay out-of-pocket.

To create an appointment, you can write out and sign your wishes in front of a notary.  Your agent will need to sign after you pass away if they agree to accept the appointment.  You may also use a will to appoint an agent for disposition of your remains.  

You can change your appointment for disposition of remains by making a new one, or you can cancel it entirely by writing out and signing your wish to cancel it in front of a notary. 

 

Why is gender-affirming language important?

Transgender, nonbinary, and other gender expansive people may want to take additional steps when doing advance care planning to make sure that their gender identity is recognized and respected. You may consider adding language to your advance directives asking others to:

•    Call you by your chosen name (even if you haven’t legally changed your name),

•    Use your correct pronouns,

•    Maintain your appearance the way you choose, or

•    House or room you the same way as other patients of your gender identity.

Even if you’ve named agents in your advance directives who would make these choices for you, having these decisions spelled out can help your supporter be a better advocate. Keep in mind that advance directives go into effect at different times so you may want to have gender-affirming language in multiple documents, such as an MPOA, a Living Will, and an Appointment for Disposition of Bodily Remains. Contact an attorney if you need advice or want to make sure your documents are prepared properly.

 

Other Patient Rights

A provider cannot require you to sign or make any advance directive.  You also cannot be discriminated against for having advance directives.

Resources

Below is information about legal services that may be able to help you with advance care planning and estate planning. Texas law has most advance directives as statutory, fill-in-the-blank forms. You do not need an attorney to complete them, but an attorney can answer questions you have, explain when they go into effect, and ensure that your documents are signed properly with the correct witnesses. Health care professionals cannot give you legal advice but can help explain the types of medical treatment covered by advance directives. 

Legal Services

Texas Legal Services Center Medical-Legal Partnerships

•    Patients of our partner organizations (KIND Clinic and People’s Community Clinic) should ask your provider for a referral. 

 

Legal Aid (income and residency requirements)

Generally, to qualify for Legal Aid your income must be below 125% of the Federal Poverty Line (https://aspe.hhs.gov/poverty-guidelines), which looks at your household income and the number of people that live with you. In 2020, 125% of FPL is $15,950 per year for one person. For two people—$21,550 per year, for a family of four—$32,750.

Some legal aid organizations may receive other grants that allow them to serve some people whose income is above 125% FPL. Even if you think you might be over-income, you can still try to apply.

  • Texas RioGrande Legal Aid: 1 (888) 988-9996
  • Legal Aid of Northwest Texas: 1 (888) 529-5277
  • Lone Start Legal Aid: (713) 652-0077

Lawyer Referral & Information Service – (800) 252-9690

The State Bar of Texas can connect you with private attorneys in your area that practice the type of law you need. If you’re connected with an attorney through the referral service, they can charge up to $20 for an initial 30-minute consultation. If you decide you want to hire that attorney to represent you or prepare documents, you would then pay that attorney for the work that needs to be done.

Statutory Forms

Sample forms of the advance directives can be found in the following statutes:

Medical Power of Attorney    Tex. Health and Safety Code § 166.164

Durable Power of Attorney    Tex. Estates Code § 752.051

Directive to Physician and Family or Surrogate (Living Will)    Tex. Health and Safety Code § 166.033

Declaration for Mental Health Treatment (Psychiatric Advance Directive)    Tex. Civ. Prac. & Rem. Code § 137.011

Declarations of Guardian    Tex. Estates Code § 1104.153 & 1104.204

Appointment for Disposition of Bodily Remains    Tex. Estates Code § 711.002(b)

They are also available on the Texas Health and Human Services website.