Rainbow Legal Talk

Healthcare Empowerment

In the midst of the great healthcare debate in Congress and all of the care and insurance decisions being made on our behalf, it seems like a good time to go over some of the legal decisions and options that domestic partners can already take advantage of. There are numerous horror stories of someone falling ill, their longtime partner being thrust out of the picture, and the family members taking over. It did not matter how long the partners were together, and it did not matter how much the patient hated their own family members. They were now in charge.

But this does not have to be the case. A simple but vital document called a Healthcare Power of Attorney can empower you and your partner in healthcare decisions. Maybe more importantly, it can help exclude people you do not wish to make decisions from being able to take over during a time of medical crisis.

 

People You Choose

One of the most important features of a revocable living trust is that it empowers the people you choose to handle medical decisions in the event you can not make those decisions yourself. You choose the people who will be legally empowered, in successive order, to work with the doctors and other medical personnel in your treatment. No one can claim to be a close relative and override your healthcare agent’s decisions. If the hospital did follow the relative’s instructions in the face of a valid Healthcare Power of Attorney, then they are exposing themselves to a huge lawsuit.

While most same-sex couples choose their partner to make medical decisions during a time of crisis, it is also important to name a few back-up people to handle things. What if both partners were involved in an accident? What if your partner is out of the country and unreachable? Who makes those decisions then? I generally recommend to my clients that they choose no fewer than 2 back-up agents. They should be people whose medical judgment and philosophy you agree with, who are medically knowledgeable (or at least medically curious enough to do their own research), and who are unafraid to stand up to doctors if they believe they are in error.

 

Decisions can be as wide-ranging as you choose

A Healthcare Power of Attorney grants as much or as little power to your agent as you wish. Their authority can extend as far as making all of the same kinds of decisions you can about healthcare from choosing the doctor to treat you or choosing the course of treatment down to the type of pain relievers to use. It is entirely up to you.

Because of the broad range of choices in medical care, some people choose to go into extreme depth about the different choices they would make under certain circumstances. With the exception of major end of life care decisions, I usually recommend that if you trust the people you have named as your agents to make good, informed decisions under the circumstances, then it does not make sense to limit their authority to handle medical decisions in the Healthcare Power of Attorney. On the other hand, I strongly urge my clients to discuss the kinds of care and treatment they want under these circumstances with the people they have chosen so they understand your thoughts and wishes. This will help guide them in making decisions should the circumstances arise, but it will not force them to let the doctors follow a course of treatment they feel is unwarranted because the document took some authority away from them.

 

Exclusion of people from hospital room

There are plenty of stories about people in a coma being surrounded by positive discussions, music, and even laughter and then coming out of the coma as if drawn towards the positive energy in the room. While I have not seen any scientific evidence to support this, people do believe it to be true. In numerous cases when a partner falls ill and they do not have a Healthcare Power of Attorney, estranged family members swoop in, kick out the partner, and negative, heated arguments fill the room. This is often the case whether partners have been together for a year or thirty years, and the reason for the estrangement was never settled. No, it’s not fair, but it is the law.

However, with a Healthcare Power of Attorney the people you choose to be in charge of medical decisions also have the ability to regulate who can visit you in the hospital and more fully control the recovery environment. And so the people who have been estranged, especially because they rejected the committed partnership, are the ones who can be excluded from the hospital room.

 

End of life care decisions

There has probably been no bigger furor in this past Summer’s healthcare debate than end of life care. Anti-reform protestors screamed about death panels and “pulling the plug on Grandma,” but all the provision really did was reimburse doctors for a medical consultation on care decisions at the end of life regarding life support and artificial nutrition. The decisions formed by partners mirror those decisions spouses should be having. The two main questions are 1) do you want to make the decisions yourself ahead of time? or 2) do you want your partner or others to make that decisions for you?

Many people choose to make that decision themselves ahead of time through a document called a Living Will. In North Carolina, you can choose ahead of time whether or not to hold back life support or hold back both life support and nutrition. These choices are available when you are diagnosed as terminal and incurable or in a persistent vegetative state. I don’t want to get into all of the different permutations and nuances of what these particular phrases mean. That could be two articles in their own rights. What I want to stress is that these main decisions can be put into legally binding documents ahead of time so if you do become ill you have already made your choices. No one else gets to make those decisions, and no one else has the burden of making those decisions.

The second option is to simply not have a Living Will and then the people you have named in your Healthcare Power of Attorney will make those decisions on your behalf. For some people, this makes more sense because they wish to have a person they know and trust make that final decision for them rather than making the decision ahead of time. It really is a matter of personal choice whether or not to have a Living Will or to let your partner make these decisions for you with their authority as your Healthcare Power of Attorney. If you have neither document, the decision will be made by your closest living relatives… no matter how estranged they are from you.

While the healthcare debate will probably continue on with different subtopics and debates over health insurance coverage and treatments, one thing that needs no debate are the benefits of making your own healthcare decisions ahead of time and putting in place the people you want to make decisions if you fall ill. Leaving your life in the hands of courtroom legal procedures is not a healthy idea at all.

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Jeffrey G. Marsocci is the author of partner protection planning books such as The Gay Marriage Alternative and Estate Planning for Domestic Partners. In addition, Mr. Marsocci is a North Carolina life and estate planning attorney with offices in Asheville and Raleigh. He can be reached at 828-490-4690, or you can visit us his office’s website at www.livingtrustlawfirm.com, and his books are available on www.Amazon.com. For more information on domestic partner estate planning issues, please check out the Podcasts at www.rainbowlegaltalk.com.

Marriage Equality Fails in Maine

The State of Maine followed 30 other states in enacting marriage inequality through the ballot box. Reversing a victory earned only a few months ago when the legislature enacted marriage equality, 53% of the people voting in this “off-off-year” election decided to rescind that victory. The measure means that Maine now keeps alive the prior restrictions against marriage equality prohibiting same-gender couples from marrying. (http://www.msnbc.msn.com/id/33609492/ns/politics-more_politics/)

 

While marriage equality will continue to be a struggle in the years, and possibly decades, to come, if the vote proves anything at all it is that individuals and couples need to take control of their own rights and pro-actively plan. Many of the rights typically associated with marriage can be gained through the right kind of life and estate planning documents.

 

In fact, in Maine, a surviving spouse, whether same-gender or opposite gender,

 

• Does not inherit 100% of their spouse’s assets
• Does not have automatic access to their partner’s accounts during a time of crisis
• Can not combine their assets as joint with a right of survivorship without incurring federal gift taxes

 

However, all of these benefits that are typically (but wrongly) associated with marriage can be obtained through the right revocable living trust, a domestic partnership property agreement, powers of attorney, and other various documents. There is no waiting for a legislature to grant you rights. There is no need for a monumental court case to change the marriage laws. And there is certainly no need to wait for a public referendum to protect yourself and your partner.

 

If one thing is clear from the main referendum on marriage equality, reliance on marriage certificates for life and estate planning does not work, even if the referendum is successful.

 

For more information on legal documents available for domestic partners, please read The Gay Marriage Alternative by Jeffrey G. Marsocci, available at https://www.createspace.com/3380312 

DC to Make Gay Marriage Legal

It appears that we will have marriage equality in the heart of our federal government. The District of Columbia appears poisesd to enact legislation to allow same-sex marriages to be performed in the district, completing the move to equality it began months ago. The District of Columbia had previously enacted legislation to allow same-sex marriages from other states to be valid in DC but did not allow the marriages to be formed in the District.

http://www.365gay.com/news/same-sex-marriage-bill-in-dc-appears-unstoppable/

This is definitely a victory for marriage equality, but we must all wait to see what Congress does. After all, Congress has the option of overturning any legislation passed in the District. However, it is a good sign that Congress did not act previously when the District passed the legislation recognizing same-sex marriages performed outside DC.

Five Common Pitfalls in Domestic Partner Estate Planning, Part VI

PITFALL 5: Hiring an inexperienced attorney or the wrong kind of attorney

Even once domestic partners decide that they have to find an attorney to help them enact their estate plans, they still have to find a qualified attorney. Who should they hire? What experience should they have? Where are they located? How should you go about finding an attorney? All of these are legitimate questions, and we’ll go through them one at a time. More importantly than even finding the right attorney is making sure that they use the right documents.

 

First, there is experience. It has been my belief for a long while that just counting the number of years an attorney has been in practice tells you nothing about how they good they would be with your particular case. An attorney may have been practicing law for 25 years, but if all they did was real estate law, then they would have no experience in preparing trusts and other estate documents. If an attorney has only been practicing divorce law for 25 years, then they would have no experience in helping you set up your corporate business.

 

If partners are looking for the right estate planning attorney, then they should look for someone with experience specifically in estate planning. An attorney with three years of practicing only in the needed field is far better than an attorney with a lot of experience doing something different. In my years of working as an estate planning attorney, I have seen many other attorneys “dabble” in estate planning and consequently give their clients inferior service. And they are not even aware that they have done so. One of the big problems in messing up an estate planning document is that the attorney doesn’t know that they missed something until it is too late to do anything about it.

 

Another thing to consider is whether or not an attorney has experience helping clients in your particular situation. This is particularly important for domestic partners because, in some cases, special precautions have to be taken, and sometimes discretion is extremely important. An attorney that has been drafting Wills for married couples for many years would certainly have the experience to help another married couple draft Wills, but maybe not the experience to help domestic partners prepare a joint revocable living trust with a domestic partnership property agreement. An attorney that has been practicing divorce law for many years may not also have the knowledge and experience to represent a partner in a disintegrating partnership with child custody issues.

 

In finding out whether or not an attorney has the experience necessary to help domestic partners, ask the following questions:

• How many years have you been practicing in this particular field?
• How many clients have you helped?
• What percentage of your client fees comes from this field?
• Do you have a lot of experience helping domestic partners with this kind of work?

 

When you get the answers to these questions, you are much closer to finding out whether or not they are experienced in the field of law you need help with.

 

Another factor to consider in choosing an attorney is location. How close are their offices to you? How willing are you to travel for the legal services you will receive? If they are located a good distance from you, how many visits will it take to complete the legal work?

 

Some times, domestic partners wish to see an attorney in person to handle their estate planning documents. In other cases, partners are not as insistent at meeting the attorney face to face as long as they are able to conduct their interview by phone. Because finding experienced attorneys in domestic partner estate planning is not an easy task, partners will sometimes travel great distances for the help they need.

 

Fortunately, there are a few short cuts to getting the right help without necessarily finding exactly the right attorney. As I mentioned before, having the right documents is critical, but you may not need the best attorney available to get the best documents. The Estate Plan has what I consider one of the best domestic partner trusts available in the form of its Partner AB-SECURE Trust with an integrated domestic partnership property agreement. (In the interest of full disclosure, the reason I know these documents are the best available is that I worked in conjunction with The Estate Plan to create them.) Top receive a free report on the Partner AB-SECURE Trust, please go to www.partnerabsecuretrust.com.

 

Any financial advisor and attorney team affiliated with The Estate Plan can obtain these documents, and I am personally available to these advisors to consult on domestic partner cases. The Estate Plan can be contacted at 1-800-350-1234, but be sure to request that the attorney or advisor contact me to assist with the case.

 

Another place to find the right attorney or advisor to work on your case is through The National Institute for Domestic Partner Estate Planning. For a listing of professionals in your state, please go to www.NIDPestateplanning.com. Many of the professionals listed there are also affiliated with The Estate Plan and therefore have access to the Partner AB-SECURE Trust.

 

Conclusion

There are many pitfalls out there affecting the ability of domestic partners to effectively reach their life and estate planning goals. There are also many inadequate solutions that give partners a false sense of security and are likely to cause problems after it is too late to do anything about it. To bypass these pitfalls, be sure to avoid using joint property, a Last Will and Testament, limited liability companies, and do-it-yourself programs and forms. To effectively reach your goals, contact a life and estate planning attorney with experience in helping domestic partners.

 

We hope that you found this information helpful in avoiding potentially disastrous and costly mistakes. For more information please download The Gay Marriage Alternative at www.gaymarriagealternative.com.

Five Common Pitfalls in Domestic Partner Estate Planning, Part V

PITFALL 4: Do-It-Yourself estate planning programs and forms

Aside from inexperienced attorneys claiming to be able to handle estate planning for domestic partners, the next things most likely to give partners a false sense of security are do-it-yourself estate planning programs or fill-in-the-blank forms. Cutting corners by cutting out the services of an experienced estate planning attorney may result in disastrous consequences. Unlike other do-it-yourself projects, people do not know that things have gone terribly wrong with their estate planning documents until it is too late to do anything about it. At that point, some has died and the estate is thrown into chaos.

 

Some common problems with do-it-yourself programs and forms are a time consuming learning curve and technically complicated execution processes. And even if the documents are executed properly, they may not be exactly what you wanted.

 

High Learning Curve

Many people using fill-in-the blank forms or computer programs are impressed by how easy it appears to do your own estate plan. “Just do A, B, and C, and you can rest easy with your own estate planning documents in place!” However, once you sit down and start following the step-by-step directions, questions begin to form and things look a little more complicated. What do you mean there may be estate taxes? What is a contingent beneficiary? What if I don’t want to leave everything to my partner and instead want to leave something to my nephew?

 

In order to get the computer program or fill-in forms exactly the way you want them, you almost have to become an estate planning attorney yourself. Yes, the forms technically allow you to have exactly the plan you want, but the way they do this by allowing you to customize the language. But exactly how do you word things? Unfortunately, the computer program can’t give legal advice, nor can the company that created the forms. You are essentially stuck on your own.

 

As a rule, good estate planning attorneys are not going to waste your money reviewing these documents at a high hourly rate. In order to find out if the documents do exactly what you want them to do, they have to go through their usual initial meetings and interviews to find out your goals. Inherent in this is educating you about the different roles of trustees, executors, power of attorney agents, and so on. Once those meetings are done, the attorney can review the document to make sure it does what you want, check it for state compliance, and then make suggestions on how to change the documents. By the time this is done, you have probably spent a half to two-thirds of the cost it would have been to have the attorney create the documents for you in the first place.

In my experience, I have found that people who do not want to spend a lot of money on having an attorney create their documents in the first place are not going to spend a lot of money making sure that the do-it-yourself documents are everything that they need to be. They usually want to hire me for “no more than an hour” to make sure their documents are OK. My firm will not do this for three reasons: 1) we can not do a good job in an hour, 2) the person will brag to everyone that their below average documents were “approved” by my firm, thereby decreasing our reputation when someone actually reads the document, and 3) when something goes wrong (and it probably will), we’ll be the ones blamed. It is not worth it to us to risk our reputation this way, and so we will turn the business down. Hopefully down the road they will come to their senses and ask our firm or another competent attorney to create the documents for them.

 

Complicated Execution Process

A specific problem with the learning curve deserves its own mention, and that is executing the documents with the correct formalities. (Buy executing the documents, I mean that it is signed and witnessed according to state law). It deserves separate mention because it is probably the most common problem, and it is also the most fatal to your estate planning wishes. If the documents are not signed and witnessed properly, then they are not valid at all.

 

Let me say that again—if the documents are not signed and witnessed properly, then they are not valid at all. They are, in fact, worthless.

 

A few years ago, I was introduced to a couple who created their own Wills using a popular computer program. After taking a quick look at them and immediately finding several large errors, I got to the signing page and told them that their documents were invalid because they were not executed properly.

 

After a few moments of protest that they did sign the documents, I explained that in North Carolina at least two independent witnesses had to sign the Wills testifying that they did see them sign the Will personally in order for the Will to be properly executed. The married couple, who incidentally were both PhDs, had signed each other’s Wills as a witness and left the other space blank. Under the state definition of an “independent” witness, a spouse clearly did not qualify.

 

The husband then sighed and said, “Well, I guess what we intended doesn’t matter.” The fact is that, under these conditions, their intent did not matter at all. Probate court judges do not care what a person may have intended if they had bothered to put their wishes in writing according to state law. The fact is that the person who was doing the “intending” is deceased, and people can do a lot of speculating about what the deceased person may have wanted. However, the probate courts would be much more of a mess than they already are if they stopped everything to determine intent without a valid Will. The way probate courts look at these situations is to see if the Will is validly executed—if it is, then they will determine intent based on the writing in the Will, and if it is not validly executed, then property will be distributed according to who the state statutes say should inherit.

 

Getting exactly what you want

Even if the Will is validly executed, it may not be exactly what the person wanted. In the years I have been practicing law, I am often approached by other attorneys and advisors about problems about a Will not being clear. Invariably, the issue has been raised in court, and large amounts of legal fees are being spent by all parties to resolve the issue through litigation. And in the end, it is likely that all of those large legal fees for all parties will be paid from the estate.

 

In every case I was consulted on, it was a person trying to save a few dollars by doing their own Will that caused the confusion.

 

If you want your partner to have access to all of your accounts during their lifetime and then have the accounts go to all of your nieces and nephews except one who has drug issues, then that is exactly what you should have in your estate plan. If you want to give everything outright to your partner, and then when both partners have passed on fifty percent goes to a charity and the other fifty percent is divided among all siblings, then that is what you should have in your estate plan. Making this clear is best done by an experienced estate planning attorney to avoid your case ending up like the ones I’ve discussed with other attorneys.

Domestic partners who are thinking of estate planning clearly care about each other, and it is important to make sure that it is handled the correct way. Saving a few dollars by trying to do-it-yourself may result in huge legal fees after one partner passes on… or it may result in the plan being thrown out altogether.