GLBT Law 101: Medical Decisions and Living Wills

Sean Lemieux
Attorney at Law


The right to refuse medical treatment and end-of-life decision making have been in the news a lot over the past several months. These are not the most pleasant matters to think about, but if you want your wishes respected you must address them. These decisions are especially important for same-sex couples – and single GLBT folks who, for whatever reasons, don’t want family members making decisions – to think about, talk about and put in writing. In planning for medical decisions of this type there are two critical issues to address: whether you want extraordinary life support measures and who will make medical decisions for you if you cannot make them yourself.

In Indiana adults are allowed to sign “living wills” which express a person’s desire that life prolonging medical procedures not be used in certain circumstances. Basically, if you have an incurable injury, disease or illness, your death will occur in a short period of time, and using life prolonging procedures will only delay the dying process, you can say you do not want those procedures. You can also indicate whether or not you want artificial nutrition and hydration (typically called “tube feeding”) under those same circumstances. To take advantage of this right to refuse care you must leave written instructions and those instructions must substantially conform to the specific requirements of the living will law. That means simply writing a note with “I don’t want life support” is not likely to result in your wishes being followed. You need the help of a qualified attorney to make sure your wishes are expressed correctly.

Just having a living will – even one that follows the law exactly – may not be enough to have your wishes followed. Sometimes health care providers do not respect a patient’s desires as expressed in a living will. This is why everyone needs to think about whom they want to make medical decisions for them if they are ever unable to make those decisions. In other words, the time may come when you need someone to enforce your living will or make other medical decisions. The person who can enforce your living will is the person with the authority to make medical decisions for you if you cannot make them yourself. Everyone has two options here: let the default rules apply or specifically appoint someone to make those decisions.

Indiana has default rules with regard to healthcare decisions. If you become ill or injured and are unable to make health care decisions for yourself, the state has a law saying who gets to make those decisions for you. This authority is given to a lawfully recognized spouse, adult children, parents and other blood relatives. If you want your partner or best friend to make these decisions for you, you must have a written health care power of attorney appointing him or her. Without this document, only your blood relatives have decision making authority. Often these relatives can, and do, exclude same-sex partners from decisions and even from visiting you in the hospital. Even if you would want a particular relative to make these decisions for you, signing a health care power of attorney appointing that relative is still wise. If your sister would follow your wishes, other family members who might not could interfere with her decision making unless she is officially appointed by you.

Recently a joke living will has been making the email rounds. Its terms exclude Congress and state legislators from making health care and end-of-life decisions. It is a reaction to events in Florida but it is not far off the mark. In Indiana GLBT families are at best ignored and, more often, openly discriminated against by those who make the rules. In a disagreement between your partner and your relatives, your partner, and ultimately you, will most likely lose unless you’ve thought ahead. If you want to control your health care and end-of-life decisions you must plan for it ahead of time.


Sean Lemieux is an attorney with offices in Indianapolis and Bloomington practicing throughout Indiana in the areas of adoption, estate planning, probate and GLBT family law. He can be contacted in Indianapolis at 317-985-5809, in Bloomington at 812-606-2974 or by email at sean@lemieuxlawoffices.com.

This article is for general information only and is not formal legal advice nor the formation of an attorney /client relationship. All situations are unique and you should consult a qualified attorney about your particular circumstances.