WAY CLEAR: Legal advice can open doors in many same sex relationships.
WAY CLEAR: Legal advice can open doors in many same sex relationships. Brett Wortman

Difficulties establishing a same sex next-of-kin

DAVID and Robert have been in a same sex relationship for many years but have not registered their relationship with Births, Deaths and Marriages.

They own their home jointly, operate joint bank accounts and have no children.

David has suffered a number of health problems recently and Robert is concerned.

If David's health deteriorates to the point he lacks the capacity to make his own medical decisions, Robert may not be recognised as next-of-kin.

When seeking legal advice they are advised the concept of a next-of-kin generally relates to the rules of intestacy.

Under these rules Robert would be entitled to the whole of David's estate, given they have been in a relationship for many years.

Pursuant to the rules of intestacy, Robert is therefore David's next-of-kin.

They are advised, however, that in circumstances where there is no documentary proof such as a marriage certificate it may be difficult to prove a next-of-kin relationship exists to the satisfaction of a medical practitioner.

They are also reminded in some circumstances medical decisions need to be made relatively quickly.

The solicitor advises them to execute an Appointments of Enduring Guardian.

These documents allow them to formally appoint each other as guardians with legal authority to make medical decisions on each other's behalf. 

They are further advised there is no process for registering the documentation, so it is important the original document is safely stored and certified copies released when required.

David and Robert are also advised that an Appointment of Enduring Guardian can only be used for health and lifestyle related decisions and that in NSW, financial decisions can only be made pursuant to a separate power of attorney.

If you would like Manny to address a particular legal issue send your request to manny.wood@ticliblaxland.com.au or call (02) 6648 7487.