LGBTQIA+ Advance Care Planning

Advance care planning means thinking about what medical care you’d want in an emergency. You can also think about who else you would want to be involved in your care if you cannot 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.

Everyone should do advance care planning, but it can be especially important for LGBTQIA+ 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 LGBTQIA+ people may want to choose different supporters.

LGBTQIA+ people are less likely to be married. Without a spouse, your family would make your medical decisions. LGBTQIA+ 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, you will need to choose someone else.

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.

Adults can use legal documents called advance directives to make their advance care planning official and legally binding. In general, your healthcare provider must follow your advance directives or try to transfer you to another provider who is willing to follow them.

There are different types of advance directives types for different types of major decisions, including:

• Medical Power of Attorney. With a Medical Power of Attorney, 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.
• Hospital Visitation Authorization. Texas law doesn’t say who can visit you or go with you to the hospital. But use a Hospital Visitation Authorization to clearly state who you want to visit or support you.
• Durable Power of Attorney. A durable power of attorney lets someone you trust handle important things for you when you cannot.
• Directive to Physician and Family or Surrogate. Also called a living will. It lets you decide what kind of care you want at the end of your life.
• Out-of-Hospital Do Not Resuscitate (DNR) Orders. Out-of-Hospital DNRs tell emergency medical professionals not to perform certain life-saving procedures when you are unconscious and not in the hospital.
• Declaration for Mental Health Treatment. A legal document that lets you say what mental health care you want in the future or name someone to make decisions for you if you are in crisis and cannot decide for yourself.
• Declaration of Guardian in Advance of Need. If someone loses the ability to make their own decisions, a probate judge can appoint a guardian to care for them, make their decisions, and manage their property. With a declaration of guardian, you can choose someone ahead of time.
• Appointment of Agent to Control Disposition of Bodily Remains. With an Appointment of Agent to Control Disposition of Remains, you give a friend or family member the authority to make decisions about what happens to your body when you die.
• Wills and Estate Planning. A will is a document that says who should get your property after you die. Wills can be part of estate planning, which is the process of deciding how your property will be passed on when you die.

When you die, 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.

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. Remember that different types of advance directives go into effect at different times, so you may want to have gender-affirming language in multiple documents, such as a medical power of attorney, a Living Will, and an Appointment for Disposition of Bodily Remains. Contact an attorney if you need advice or want to ensure your documents are correctly prepared.

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

Here are examples that show how important it can be for you to do advance care planning and choose your supporters.

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

• Medical Power of Attorney: Texas Health and Safety Code 166.164

• Durable Power of Attorney: Texas Estates Code 752.051

• Directive to Physician and Family or Surrogate (Living Will): Texas Health and Safety Code 166.033

• Declaration for Mental Health Treatment (Psychiatric Advance Directive): Texas Civil Practice and Remedies Code 137.011.

• Declarations of Guardian in Advance: Texas Estates Code 1104.153 and 1104.204.

• Appointment for Disposition of Bodily Remains: Texas Health and Safety Code 711.002(b).

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