By Beth A. Allen, Attorney at Law
and Kerry N. Lear

Why Plan

If your partner ends up in a hospital while the two of you are in Greece, will you be allowed to be in her room with her? If you get ill in Mexico and are not well enough to make your own medical decisions, will your partner be allowed to make decisions for you?

It is important for everyone to plan for incapacity and death, but it is often even more important for lesbians and gay men to make sure their documents are in order as the default laws and policies often do not adequately protect our families. You can increase the chances that you could answer “yes” to questions similar to the ones posed above by having the appropriate documents in place before you travel and taking copies with you when you go.

Before You Leave

Perhaps the most important document to have in place before you travel is an Advance Directive. In this document you can appoint a health care representative to make medical decisions for you if you are unable to make the decisions for yourself. You can also give explicit instructions to health care providers about what kind of care you do and do not want in certain situations.

It is also a good idea to make sure that your finances would be taken care of should you become incapacitated or die. A Durable Power of Attorney will allow you to appoint someone to control your finances should you become incapacitated. This person would be able to access bank accounts, pay bills, and send you additional money, if necessary. Often, people who travel with their partner will draft the Durable Power of Attorney so that someone in the States could act if both you and your partner are incapacitated.

It is unlikely that you will die while traveling, but nonetheless, you should have a Will (and possibly a Trust) to ensure that in the event of your death, your property goes to the people that you choose as opposed to the people that the State says are your closest relatives. Additionally, you should make sure that you have chosen beneficiaries for any accounts that allow you to do so. To provide yourself more reassurance, consider having a Disposal of Remains drafted. This document sets out who controls post-death decisions concerning issues such as burial or cremation, specifies your wishes concerning your remains, and can go a long way towards avoiding a family battle while coping with your grief in a foreign country.

It can be helpful to hire an attorney to assist you in preparing these documents as often there are specific requirements of what the documents must contain and how they should be phrased. It is a good idea to seek out an attorney who is familiar with the special planning needs of lesbians and gay men.

What to Take With You

Some of the documents you create may not be of much use to you if you do not have them with you. You should definitely take copies of your Advance Directive and your Durable Power of Attorney with you when you travel. We recommend that you keep a copy of these documents on your person, as well as a copy at your hotel, at all times. Some travelers have these documents printed on small plastic coated cards for ease of carrying them.

If your relationship is recognized by your home state and you have a certificate of your Domestic Partnership/ Marriage/ Civil Union you should also consider taking a copy of that with you. Even if the place to which you are traveling will not specifically honor that recognition, it can only improve your chances of successfully arguing that you should be treated as a legitimate couple. In the same vein, if you have a contractual Domestic Partnership Agreement, it would be a good idea to take a copy of that. Last but not least, you should take the phone number of your attorney with you so that you can easily contact her should any sort of problem arise.

If You Have Children

If you have children, there are some additional documents that you will need to think about. If possible, you should make sure that you have completed the adoption of any children before you travel so that the child is legally related to both parents. You should also make sure that you have guardianships set up for your children. If your children are traveling with you, it will be necessary to take a certified copy of the judgment of adoption with you so that you will have proof of your legal relationship should anyone call it into question. Additionally, consider taking copies of your child’s health records if your child is traveling with you.

The Bottom Line

While it may not be very much fun to plan for the worst, it could end up saving you a lot of heartache in the event something does go wrong while you are traveling. So remember to plan appropriately before you leave and to travel with the necessary documents. Then put up your feet, sip a cool drink and watch the porpoises dance by the side of the ship, secure in the knowledge that you are prepared for you and your family’s future.

About the Authors

Beth Allen is a Partner and Kerry Lear is a Law Clerk at Allen² Law, LLC in Portland, Oregon. Allen² Law provides legal counsel in the family law and estate planning fields in Oregon and Washington. Whether it is drafting partnership agreements, wills, or any of the documents needed to provide long term security; assisting in adoption, surrogacy, sperm donor, or unique custody agreements; or being a strong and reasonable advocate when relationships dissolve, the attorneys of Allen² Law can provide the knowledgeable, supportive, and compassionate services that are right for you and your family.