I have been in a same-sex relationship for 3 years. What rights, if any, does my partner have if I become incapacitated?

Marriage or a civil union grants parties to the relationship legal protections, benefits, and responsibilities, including those arising upon the incapacity of one party to the relationship. In 2003, the Texas Legislature made it clear that same-sex marriages and civil unions are not recognized in Texas. However, there are steps that anyone – including same-sex partners or even just good friends – can take to contractually provide their partner or any other person certain rights upon incapacity.

For example, a person (referred to as the “principal”) can execute a durable power of attorney in favor of another person (referred to as the “attorney in fact” or “agent”). A durable power of attorney gives the agent the authority to act on the principal’s behalf when the principal becomes incapacitated, including managing the principal’s property or financial affairs. The powers granted to the agent can be general or limited, according to the principal’s needs. Another, less favored, option is to designate a guardian for a person’s estate in the event of incapacity. Appointed guardians are subject to a court’s approval and must participate in court proceedings to establish the guardianship. It may be advisable to execute both a power of attorney and a declaration of guardianship in appropriate cases.

Additionally, a principal can execute a medical power of attorney in favor of another person, giving the agent the right to make certain medical decisions on the principal’s behalf. A guardianship can also be used for this purpose. A person may want to consider executing both a medical power of attorney and a declaration of guardianship.

Durable and medical powers of attorney have both benefits and drawbacks that may apply to particular circumstances. These options should be discussed with an attorney before execution to determine the best course of action to achieve the desired result.

This article appears in June 2 • 2006.

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