Tim Reardon is a prudent man. When he and his partner Eric decided to have a child through a surrogate, they were diligent about getting all the legal documents in order.
They already had a partnership agreement, executed before their commitment ceremony in 2001. They had drafted powers of attorney, health-care directives, and every document they could within the restrictions of the law to be certain their relationship to one another and their future children was clear and protected.
Yet when Tess was born in 2003, Tim and Eric waited for a year to get a judge’s order for a birth certificate because the state insisted on DNA testing for proof of paternity. The cost, both monetary and emotional, was enormous.
Adding to the emotional burden was a serious health challenge. Three months after Tess’ birth, Eric was diagnosed with a brain tumor that later was determined to be malignant. The family life Tim and Eric had dreamed of was suddenly thrown into chaos. Tim and Eric returned to their attorney to be certain their paperwork was in order. It had become imperative that Tim was clearly named the person to “call the shots” upon Eric’s death.
Four years later, when Eric was to go from the hospital to a hospice residence, a social worker collected a financial eligibility screening to determine if Eric was eligible for memorial funds to offset the cost of the hospice residence not covered by either insurance or Medicaid. The hospital business office wanted to include Tim’s earnings in the calculation of “household income.” “They wanted to recognize our relationship when it was financially in their best interest,” Tim said. Tim refused. Yet when Eric died a short time later, Tim was informed that the medical examiner and cremation society could not recognize Tim’s relationship to Eric as next of kin, with the right to make decisions about Eric’s remains.
Even though Tim showed administrators a power-of-attorney document, a health-care directive and Eric’s will all clearly naming Tim as the decision-maker, it turned out that Eric’s Health Care Directive wasn’t complete. A required separate initial-box had been missed. In the absence of that initialed box, it defaults to the legal next of kin, which would first be the spouse. Thus only with the consent of Eric’s mother and father was Tim ultimately allowed to sign the cremation society paperwork.
“I felt so positive about the way the hospital staff and hospice cared for Eric and engaged me as the key decision-maker on Eric’s behalf, Tim said. “Tess and I were treated with the respect that all families should receive. Luckily Eric’s parents also preferred that I have the responsibility for decision-making regarding Eric’s Care. Despite our best efforts to attend to all the legal details, in the end, when I was in the depths of grief I was forced to prove my legal rights to carry out Eric’s wishes.
“For three years I’d cared for Eric as his health deteriorated and he became increasingly dependent on me for attention to even his most basic bodily functions, and yet after his death they had the audacity to question our relationship,” continued Tim. “I felt so violated and angry that they would not acknowledge our relationship.” Any legally married spouse is automatically recognized as next of kin and is granted that right by law with no papers, no lawyers, and no need to prove their relationship at life’s most vulnerable moments – the law protects them from such insult.
