On Thursday, President Obama issued a memorandum that reinforces hospital visitation rights for same-sex couples by threatening federal funding cuts if hospitals discriminate on the basis of sexual orientation or gender identity. As such, the issue of local authorities not adhering to medical directives or power of attorney rights when it comes to same-sex couples has been set firmly in the spotlight.
For obvious reasons, this is an issue of particular concern for many older and elderly LGBTs who may very well depend on established health care directives and the like to ensure that their wishes are adhered to when they are incapable, whether due to infirmity or an unforeseen health emergency, of communicating relevant details for hospital visitation rights and end-of-life decisions.
The following story documents one such incident of discrimination against a same-sex couple from Sonoma, California, who took all the required legal steps to establish their health care directives and power of attorney rights, but whose preparations were allegedly ignored by county officials that, despite the couple’s 20 year relationship, considered them nothing more than “roommates” and kept them apart when, after an accident, one of them was hospitalized in 2008.
Clay [Greene] and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health [but, as this report attests, had been starting to show early signs of cognitive impairment].
One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital.
Clay and Harold did not take advantage of California’s domestic partnership law and obviously weren’t married in the brief time between California’s marriage bans.
Instead, and like many older gay and lesbian couples, they relied on having drafted all the other appropriate legal documents naming each other as beneficiaries of their respective estates and agents for medical decisions and the like, so as to protect their wishes and assets in case of an emergency. This should have been enough. Apparently, it wasn’t.
The next part of this story is truly heartbreaking and is taken from a separate, more detailed post from the NCLR:
… [While] Harold was hospitalized, Deputy Public Guardians went to the men’s home, took photographs, and commented on the desirability and quality of the furnishings, artwork, and collectibles that the men had collected over their lifetimes.
Ignoring Clay entirely, the County focused on Harold, going so far as to petition the Court for conservatorship of his estate. Outrageously referring to Clay only as a “roommate” and failing to disclose their true relationship, the County continued to treat Harold as if he had no family. The County sought immediate temporary authority to revoke Harold’s powers of attorney, to act without further notice, and to liquidate an investment account to pay for his care.
The court, however, chose to deny that motion, but did grant county officials what the NCLR calls “limited access” to Harold’s finances in order to pay for his care. This, it seems, was insufficient. The NCLR goes on:
Then, despite being granted only limited powers and with undue haste, the County arranged for the sale of the men’s personal property, cleaned out their home, terminated their lease, confiscated their truck, and eventually disposed of all of the men’s worldly possessions, including family heirlooms, at a fraction of their value and without any proper inventory or determination of whose property was being sold.
Adding further insult to grave injury, the county removed Clay from their home and confined him to a nursing home against his will—a different placement from his partner. Clay was kept from seeing Harold during this time, and his telephone calls were limited.
Three months later, Harold died in the nursing home he had been placed in, and Clay, because of the County’s actions, could not be at his partner’s bedside during those final months. With the exception of but one photo album that Harold had painstakingly put together for Clay during his declining weeks of life, Clay has been left without any of his personal possessions to remind him of the 20-year relationship he shared with Harold as, to date, he has not been able to recover any of the items that were auctioned off.
Clay has reportedly now been released from the nursing home following an appeal by his court-appointed attorney, Anne Dennis. Now, Ms. Dennis along with Stephen O’Neill and Margaret Flynn of Tarkington, O’Neill, Barrack & Chong, will be representing Clay in legal action against the County, the auction company and the nursing home, with technical assistance being provided by the NCLR.
A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.
It is perhaps pertinent to note that Sonoma County voted against Proposition 8, California’s gay marriage ban, by 66.1 percent in 2008, and that it is largely considered to be a progressive area where LGBT issues are concerned. As such, the emergence of this story serves to highlight the need for Thursday’s memorandum, as it demonstrates that instances of discrimination can occur mostly anywhere and not just toward LGBT people, although they are made particularly vulnerable. This surely raises concern for all elderly people as to whether their wishes will be respected even when all the appropriate legal precautions have been put in place.
However, President Obama’s memorandum grazes only one of the 1138 rights that marriage affords heterosexual couples that are currently denied their same-sex counterparts. As such, the need to repeal the federal Defense of Marriage Act (DOMA) is also brought into stark focus if we are to ensure that same-sex couples are not left vulnerable beyond the narrow focus of Thursday’s memorandum.
For more information on end-of-life issues and the legal problems facing older LGBT people, please click here.
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