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Views: Ray J. Koenig III, Esq.-Lessons From the Terri Schiavo Case for theLGBT Community
by Ray J. Koenig III, Esq
2005-04-06

This article shared 4164 times since Wed Apr 6, 2005
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The Terri Schiavo case in Florida recently riveted the nation. Regardless of one's position on what treatment she should have received, everybody seems to agree that her situation was a tragedy that no family should have to endure. Her husband and court-appointed guardian, Michael, fought with her parents in at least 16 different courtrooms over what medical treatment, if any, Terri would have wanted in her situation. The Schiavo family experience should be a lesson for everyone, especially for those not allowed to legally marry their partners.

The participants in this case were Terri's husband and Terri's parents. Their 15-year dispute centered around divergent views of what Terri would have desired in this situation. Even though both Terri's husband and parents provided testimony of her expressed intentions, the testimony of Terri's husband ( that Terri would not have wanted to continue her life in her condition ) was very important to the trial court judge's final decision. After a lengthy hearing, the trial court found that Terri would not want life-sustaining measures taken to maintain her current medical state.

Consider what would have happened if Mrs. Terri Schiavo was actually Mr. Terrence Schiavo and Michael was a long-term partner who, but for the laws prohibiting it, would be Terrence's husband. If this were the case, Michael most likely would not have been appointed guardian by the court. Likewise, any testimony provided by Michael about his partner's wishes would not have been given the same weight that it was in the Terri Schiavo case. This simple example demonstrates the importance of analyzing the issues raised by this case and applying the conclusions to the LGBT community.

First, the guardianship issue. In Illinois and most other states, a judge will generally choose a 'traditional' family member or spouse to serve as guardian for an individual. In the Terrence example, Michael is not legally a spouse or a 'traditional' family member. Thus, Terrence's parents would have had a better chance of being appointed guardian.

Second, the issue of intent. Illinois, like Florida and the majority of other states, gives great weight to the courtroom testimony of family members in this type of case. However, Illinois, like Florida and almost every other state, does not legally consider same-sex partners to be family members. This means that if Terrence and Michael were same-sex partners, the testimony of Terrence's parents would generally be given much greater weight than that of Michael.

Viewing the Schiavo case in this light yet again drives home the unequal treatment that members of the LGBT community face under the law. It should also serve as a reminder that, until we are treated as equal citizens, we must take extra steps to insure that the law treats us the same way it automatically treats opposite-sex couples married to each other.

How could the fictional Terrence have insured that his partner Michael would have been able to make healthcare decisions for him? He could have done so by executing a Health Care Power of Attorney. A Health Care Power of Attorney is a legal mechanism that allows an individual to designate an 'agent' to make healthcare decisions on his or her behalf. Executing a Health Care Power of Attorney eliminates the need for the court to appoint a guardian ( usually a 'traditional' family member or spouse ) once an individual becomes incapacitated. As such, it is a powerful tool for the LGBT community.

The fictional Terrence could have nominated Michael to serve as his agent to make healthcare decisions for him should he become incapacitated. Not only would Michael have been able to make all healthcare decisions for Terrence, but he could have done so without having to go to court because, again, guardianship is not necessary when one has a power of attorney. Further, Terrence could have specifically indicated on the Power of Attorney what, if any, life-sustaining measures he would want taken on his behalf.

The lesson we learn from the Terri Schiavo case is not new. It is the same one that many attorneys and healthcare providers repeatedly give their clients and patients. The lesson is simple: execute powers of attorney now to insure your intent is honored later and to lessen the heartbreak your partner may suffer should you become disabled. Take heed of this lesson and make an appointment to see an attorney today.

Ray J. Koenig III, a Senior Associate with Peck, Bloom, Austriaco & Mitchell, LLC, practices in the areas of elder law, probate litigation, trust litigation, fiduciary litigation, planning, and estate administration, with a strong emphasis on will, trust, guardianship, and advance directive contests. In addition to representing individuals and families, Koenig represents financial institutions and medical institutions in all areas of his practice. Koenig is also frequently appointed in guardianship cases as Guardian Ad Litem and defense counsel by Circuit Court of Cook County judges.

Koenig has conducted seminars for the Chicago Bar Association and community organizations and has been a presenter at City of Chicago Department on Aging workshops. Koenig proudly serves as a member of Chicago Ald. Tom Tunney's Senior Advisory Council. Koenig is also a member of the Lake View East Chamber of Commerce, serving on a committee addressing senior adult issues. Finally, Koenig serves as a member of the Illinois Coalition on Mental Health and Aging, Northern Region.

Koenig is actively involved with several charities, including Heartland Alliance for Human Rights and Human Needs.


This article shared 4164 times since Wed Apr 6, 2005
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