Gays, adoption, and the legal toolkit without marriage

Today we are all paying attention to SCOTUS.  Gabriel Rossman discusses a clip from Liberace that involves adoption, and where Rossman notes that it is a ‘kinship dodge.’ He is focussed on sociology. I noted that adoption is one of the legal tools that homosexual couples have in order to do the things that heterosexual couples attain by right in most states, such as inheritance, insurance, and medical decision-making. In my comments, I wrote:

One couple decided to make the move to adoption when member of the partnership was in a serious car accident, and when her partner of 34 years rushed to hospital, she was refused visitation–the hospital security guards actually escorted her out and closed the glass doors in her face– because she ‘wasn’t family.’ The biological family took this whole episode as a chance to….accomplish what I am not sure, other than profound unkindness to both women; but during the one partner’s six week recovery and PT the other partner was refused entry and was restricted to telephone calls. Oh, and cards and gifts she sent were thrown away by the “real family.” Classy. So as soon as soon as the one partner got out they lawyered up and the lawyer actually suggested adoption–with it came the ability to set up power-of-attorney both ways and a bunch of other stuff that heterosexual marriage simply conveys. IOW, adoption has been an expensive legal means to get the same legal bundle of entitlements that heterosexual pairs just get for being married. The law is strongly tilted towards blood family and married couples. Robert Benevides was Raymond Burr’s partner AND business partner for 40 years, and Burr’s niece–his NIECE–kept Benevides in court for ages on pretty thin rationale…but had they been married her burden for getting INTO court at all would have been greater, let alone the burden for contesting the will.

I have to admit, I’ve always been with the libertarians on marriage: it’s not the state’s business. If churches want to do it, fine.  States should just stick to the business of creating generic contracts and not get worried about the physical equipment the parties show up with.

Esteemed friend and real-deal lawyer Jesse Richardson writes to add:

You don’t have to be related by blood or adoption to be appointed power of attorney. EVERYONE should have a power of attorney and you should appoint whoever you wish (as long as they are at least 18 years old and competent). You could even include in the power of attorney the power to visit the hospital, etc. May not be enforceable, but you can do it to set out your wishes. You should also do a separate medical power of attorney and living will/advance medical directive (the latter is optional, depending on your wishes). Some people aren’t comfortable with a medical power of attorney, but in the unmarried couple situation (regardless of sexual orientation), it’s probably a good idea.

Just to further clarify, spouses are not automatically the power of attorney for each other. Married couples should do powers of attorney as well. Once we turn 18, we have no guardian and no one can make decisions for us (even our spouse).

Unmarried couples should also consider nonmarital partnership agreements.

Finally, once you do a medical power of attorney and/or living will/advance medical directive (do several originals), take it to your doctor the next time you see the doctor. Give it to the doctor, discuss it with them. Take another with you on trips, where the doctor, if one is needed, may not know you.