July 11, 2003
Much progress has been made in South Africa towards the removal of legal discrimination against lesbian and gay people. Most of this work has been done against great odds and with little support by what is now known as The Lesbian and Gay Equality Project.
Nevertheless, some major obstacles still remain for us, even in seeing that our own decisions are carried out. One of the main gaps that remain within the law is the proper and equal recognition of lesbian and gay families.
According to the law on intestate succession (the law that deals with what happens with your things if you should die without a will) and the legal system around families, life partners are not recognised as family for the purposes of inheritance nor automatically for health care. This has the effect that should you die without a will, all money will not go to your partner, but to your nearest blood relative. A future article will deal in detail with this.
Perhaps even more intimidating than what could happen after you die, is what can happen while you are still alive. Because life partners are not automatically recognised as family, it is not safe to assume that your partner would be in a position to make any decision for you when you are incapacitated.
Homophobia within the Health-care sector
Whenever lesbian or gay people visit health care facilities for the first time, the staff most often assume that they are heterosexual. People are often scared to disclose that that they are lesbian or gay, because the doctor or health care worker may be homophobic; or because they fear that this information will be made public, even though this would be unlawful - all patients have the right to confidentiality and to be able to expect that their health care workers will respect this right.
While we all have the right to privacy, which includes the right to decide when and to whom we are out as lesbian or gay people, it is often very important for doctors and other health care workers to know the sexual orientation of their patients. Without such knowledge, lesbian and gay people may not receive the care, treatment and advice that they need.
All health care workers have a legal and ethical duty to respect the privacy and confidentiality of patients, to give all patients the best care and treatment available, ad to treat all patients equally. If a doctor or health care worker does not do so, a patient has the right to take up the matter in court or with a professional body such as the Health Professionals Council of South Africa.
Treatment and care decisions
In the event that you become incapacitated, either due to illness or by injury, you may be unable to make medical decisions about your care. In such circumstances, our families often want to make the decisions. Sometimes they interfere to such an extent that they exclude the lesbian or gay partner from making of such decisions. This exclusion may be because they do not know that their family member is lesbian or gay, they do not recognise or respect the relationship, or because they have the legal right to do so, where the law does not recognise the relationship.
This problem is often encountered by lesbian or gay people living with HIV/AIDS. A further problem is that a sick partner may not be able to do certain necessary things that only he or she has the legal authority to do, such as signing cheques to pay for medication.
How can these problems be avoided?
1. Give power of attorney to their partner; and
2. Draw up a living will.
A power of attorney would give the partner the right to do certain things on behalf of the partner who is temporarily or permanently incapacitated, and therefore cannot do those things himself or herself. It is a simple document that grants power to another person to act on your behalf in legal and financial matters. Unless otherwise stated, a power of attorney starts operating as soon as it is signed. It is advisable to expressly stipulate at what time the power of attorney is to start operating, such as when one is unable to handle one's own affairs.
One may also incorporate a power of attorney into your living will and you can be very specific in a power of attorney on what rights you confer on your partner or any other designated person.
A living will spells out what type of treatment a person would want if, at any time in the future, he or she is unable to take or communicate decisions regarding his care and treatment. A living will can set out the following:
Who can take care and treatment decisions
Who is to be allowed to have access to you;
What factors must be considered in taking these decisions; and
What decisions can and cannot be taken by anyone.
It is necessary to emphasize that in the absence of a living will, it is very possible and even likely that your partner may be refused access to you in a health care facility.
Below is a sample of a living will. This is just a guideline and it is always best to have it checked by a legal professional and customised for your needs. One of the best ways of doing this is to contact the Lesbian and Gay Equality Project who can prepare couples or individuals the whole set of documents, including wills, living wills and partnerships documents, that they need to legally protect themselves.
I, ________________________ the undersigned, hereby state:
1. In case at any time in the future I am unable to take or communicate decisions regarding my situation, I set out below the facts which, after careful thought, I wish to be taken into account in deciding what medical treatment should be given to me:
1.1. I have lived together in a committed and intimate life partnership with ___________________ (insert full name) since __________ (insert date)
1.2. We share a mutual commitment to each other's well-being and a mutual obligation of support for the basic living expenses incurred during the life partnership.
1.3. We have live together at ___________________________________ (insert full address) and regard it as our home.
2. Accordingly , should I reach a physical or mental condition where I am unable to take or communicate decisions regarding my situation, such decisions should be taken by my life partner, ______________ (insert full name), to be exercised according to the following conditions:
2.1. As far as is reasonably possible, treatment and care should take place at our home at _________________ (insert full address).
2.2. If my condition is such that it is not possible to provide me with the requisite treatment and care at home, I should be moved to a clinic or hospital where I will receive this treatment and care.
2.3. At no point am I to be placed in the care of any other family members or friends, unless my life partner is unable to take adequate care of me or does not have the legal capacity to make decisions for me.
3. Should these wishes not be respected by anyone, my life-partner ______________________ (insert full name) may:
3.1 Apply to court for an order compelling compliance; and/or
3.2. Remove me from a clinic, hospital or the home of any other person, and return me to my home at __________________. (insert full address)
Signed at __________ on this ____ day of _____, 2001.
1 ___________________________________________ (full name and signature)
2 ___________________________________________ (full name and signature )
The witnesses should be entirely independent adults - this excludes relatives or beneficiaries under your will.
It is important to convey your views to those who may be called on to implement the living will, such as your partner, other family members, close friends and your doctor. Keep a copy of the living will readily available at home and give your doctor a copy - don't just attach it to your will or lock it away somewhere. If you are admitted to a hospital, give a copy to the hospital and if you sign consent to any medical treatment, add "subject to my living will".
Even in the face of a flawed legal framework, we are not powerless. We can take control of our lives and see to it that what we want most, when it counts most, is what we get. –Qfn
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