In the event of my hospitalisation what rights does my de facto partner have with regard to determining what will happen to me?

Question Details: If I were hospitalised and unable to make my own decisions regarding my care for example whether to operate or turn off life support does my de facto partner of 10 years have the same rights as if he were my husband? Would he have access to my medical information? Would he, by default, be the one to assist with such decisions as opposed to my parents? If not, how can we legally implement this?

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Answers by Lawyers

Community Law Wellington & Hutt Valley

If you were hospitalised and unable to make decisions, your de facto partner would have the same rights as if he were your husband. A health agency can disclose medical information to your de facto partner and should consider his views in making decisions about your healthcare. However, if you wish to give him further rights, you can set up an ‘enduring power of attorney’. And if you want to plan together about your future healthcare, you might want to use an 'advance directive'.

YOUR HEALTH INFORMATION

A health agency may tell others of your presence, location, condition and progress in hospital. It may provide additional information to “near relatives” in accordance with recognised professional practice. We consider that a de facto partner who had been living with you in a relationship of 10 years would be a “near relative”. However, the health agency can only provide your partner with as much information as is necessary in light of the reason for their disclosure.

If you cannot speak for yourself, and the health agency considers that your partner is clearly acting in your best interests, it will regard him as your representative. This means that the agency can disclose information to him. If your representative requests your health information, the health agency must comply with his request unless they have a good reason not to.

DECISIONS RELATING TO TREATMENT

If you are not able to make an informed choice about your healthcare, the health agency can provide health services where it is in your best interests and they have taken reasonable steps to obtain your views. If they cannot obtain your views, the health agency must take into account the views of other suitable persons who are available and interested in your welfare. This would include your partner if he is available.

If you wish, you may set up an ‘enduring power of attorney’. An enduring power of attorney can give your de facto partner the right to make health decisions on your behalf in the event that you are cannot decide for yourself. You can choose when the enduring power of attorney would come into effect, who your attorney must consult with when making decisions, and any other special conditions. You will need to use a lawyer or trustee company in order to set up an enduring power of attorney.

Advance care planning is another way to make sure that your treatment preferences are known in case you can't express yourself or make your own decisions.

If you would like further information, the following websites may be useful:
• The Health and Disability Commissioner’s website: http://www.hdc.org.nz;
• The Health Information Privacy Code: privacy.org.nz and
• In relation to enduring powers of attorney: www.ageconcern.org.nz www.msd.govt.nz and www.publictrust.co.nz.
• In relation to advance directives and advance care planning: www.advancecareplanning.org.nz

Answered 8 Oct 2013. The IMPORTANT NOTICE below is part of this answer.

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