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.

Equality and Republican Values Both Prevail in Gainesville

Last week, the city of Gainesville, Florida made a critical vote to advance local equality for LGBT individuals and advance one of the main tenants of the Republican Party.

 

Huh?

 

The vote in Gainesville was actually whether or not to take away the authority of the city council to enact civil rights protections for protected classes that are in addition to those protections and classes that go beyond Florida state law. It specifically would have voided the Gainesville ordinances that protect its citizens on the basis of sexual orientation and gender identity which are already on the books.

 

“SHALL THE CITY CHARTER BE AMENDED TO PROHIBIT THE ADOPTION OR ENFORCEMENT OF ORDINANCES, REGULATIONS, RULES OR POLICIES THAT PROVIDE PROTECTED STATUS, PREFERENCES OR DISCRIMINATION CLAIMS BASED ON CLASSIFICATIONS, CHARACTERISTICS OR ORIENTATIONS NOT RECOGNIZED BY THE FLORIDA CIVIL RIGHTS ACT? THE ACT RECOGNIZES RACE, COLOR, CREED, RELIGION, GENDER, NATIONAL ORIGIN, AGE, HANDICAP, MARITAL AND FAMILIAL STATUS. ADDITIONALLY, THIS AMENDMENT VOIDS EXISTING ORDINANCES CONCERNING SEXUAL ORIENTATION, GENDER IDENTITY, AND OTHER ORDINANCES INCONSISTENT WITH THIS AMENDMENT.”

 

Thankfully, the amendment lost by 16 points, and the civil rights ordinances stayed in place. But what makes this and many other local efforts to put equal rights issues on ballots so ironic is that the Republican Party supposedly favors local government control over broader state and national control. In reality, a decent portion of Republicans throw that out the door when they don’t like something the local government does.

 

I have a lot of Republican friends who hear about these efforts to squash civil rights and they simply shake their heads. They are in favor of smaller government, they are in favor of individual rights and protections, and they are in favor of balanced budgets. And they end up constantly disappointed when Republicans push these wedge issues that keep overshadowing the core principals of their chosen political party.

 

And so, yes, equality was advanced in Gainesville, and at the same time local control over issues was preserved in the old Republican tradition.

 

Freedom of Speech and Association May Be a Victim of Nigerian Anti Gay Marriage Bill

As the worldwide community slowly grows to “tolerate” the LGBT community (very, very slowly), the forces of intolerance have realized the only way to turn back progress is to criminalize extremely basic rights, even those not strictly relevant to domestic partners. [Let me first be clear that I’m talking about tolerating and not embracing. The percentage of the population embracing the LGBT community remains extremely low, but there is a slowly growing population who could care less about the LGBT community’s lifestyle. In their minds, if it doesn’t affect them, why should they care? Live and let live.]

 

But now Nigeria, which already outlaws gay marriage, is looking at locking up the people getting married for three years for violating the ban. While certainly horrible on its own, the law also starts to stab at the heart of progress in the Allied community by punishing people to “aid and abet” the marriage, including people attending the ceremony… for five years in prison. That’s right, people attending the gay marriage ceremony get more prison time than the domestic partner couple actually getting married in violation of Nigerian law.

As if that were not enough, the bill would actually criminalize lobbying, protests and advocating for equal marriage rights.

“Rights groups say the law will criminalise any activities related to homosexuals including human rights defending and advocacy for equal rights for all individuals or communities.”

That’s right. If the people start to come around to progress, if they actually start to see their own LGBT loved ones get married and the world does not come crashing down upon them, then lock them up for attending the marriage. If they realize that the law is wrong and they want to change it, lock them up for not keeping their mouths shut.

 

There are enough problems in our country and the world. While it will take time for the LGBT community to be accepted by a majority, and even more time for gay marriage to be legalized nationally and then worldwide, we can’t let the progress we’ve made in this world be thrown back by criminalizing basic, fundamental freedoms of speech and to petition the government for a redress of grievances… especially if it is done for people standing up for the people they love.

City of Raleigh Human Relations Commission

Last Saturday, I had the opportunity to attend Mayor Charles Meeker's breakfast for the City of Raleigh's Human Relations Commission, and I did so when I heard about it through Commissioner Jan Muller, who is also the Chairperson of Triangle Community Works (www.tcworks.org). I was pleased to see so many people who were so accepting of the GLBT community as well as other groups that are traditionally discriminated against.

The goal of the commission is to advice the city council on making sure that the city's services reach all of its citizens and that human rights are protected. http://www.raleighnc.gov/portal/server.pt/gateway/PTARGS_0_2_306_207_0_43/http%3B/pt03/DIG_Web_Content/category/Government/Boards_and_Commissions/Human_Relations_Commission/Cat-1C-20041206-104611-Human_Relations_Commissi.html

It was especially good to see that the GLBT community is now represented with its own commissioner when Jan Muller was recently appointed. I was also glad to see that the discussions at my table went very quickly away from gay marriage and towards equal rights and providing a safe environment for the GLBT community in Raleigh. Of course, this conversation went to the real issues affecting our municipality when I pointed out that just about every right married couples have can also be achieved by gay and lesbian partners through proper life and estate planning except for some of the tax breaks. (http://www.livingtrustlawfirm.com/domestic_partnership.htm ) It was as if a switch was flipped and the table went right on to those problems that can not be solved without the commission's assistance, such as reaching out to the GLBT and other communities to see how they think the City of Raleigh can be a better place to live.

I was also happy to see that many of the people who attended were serious about moving forward together, and that they planned to attend the city's monthly meetings. With people like Jan on the commission helping out, I know we can make great strides in our City, but she is also going to need the help and support of the GLBT community at these meetings and any projects that come up. Please follow the links about to the Commission's webpage to see when the next meeting is, and also go to the Triangle Community Works site to see what Jan is doing in her other full-time volunteer job.

Wedding Wars has a point

Wedding Wars was a nice comedy that addressed a serious topic, which may well be the best way to get through to those people who oppose gay marriage just because their preacher told them to. But there is a broader issue here that many of the critics are missing, and that is the power that gay people really have in our society. While gay marriage is the big topic right now, most of the benefits of marriage can be achieved through life and estate planning (http://www.livingtrustlawfirm.com/domestic_partnership.htm)

But what about the right to be hired and maintain a job equally with others and not be discriminated against because you are gay? What about the right to adopt a child without the fact that you are gay counting against you? What about the right to be judged on the merits of your character, ability and past accomplishments rather than being looked down upon because you are gay? Those are probably more important to the everyday lives of gay people, and if those rights are achieved, gay marriage will follow.

But why not refuse to patronize businesses that have employment practices that disciminate against gay people? For more than a decade, many Cracker Barrels would refuse to hire gay people and would fire employees if they found out they were gay. In 2002, the company thankfully voted to bar discimination based on sexual orientation. Have you checked your stock portfolios to see if you have any stocks for companies that continue to discriminate? (Check out Darron Stover's website regarding socially conscious investing at http://www.darronstover.com/sociallyresponsible.htm). If you are a business leader in your community, do you refuse to work for people who are biased against gay and lesbian couples? It may be time to take a stand on equal rights, but laws and elections are only one way to achieve these rights. Remember that you also vote EVERY SINGLE DAY when you spend your money.

Panel Supports Gay Parents

What's common sense for most of us now has scientific research to back it up. As Maryland braces to review same sex marriage, a group of professionals released their findings that gays and lesbians can be as effective parents as heterosexuals.

http://www.baltimoresun.com/news/local/bal-md.marriage01dec01,0,4794543.story?coll=bal-local-headlines

One area where heterosexual parents are just as likely to fall short is adequately planning for their children if they should pass on. In addition to making sure that they have sufficient assets and life insurance to care for their children until they are adults, it is just as important to plan for the inheritance to be handled by the right person for them until the right age of inheritance, probably somewhere between 25 and 40. As an example and based on the age of the child, you may want to leave them $500,000 to make sure they can get through college and into the real world... but you may not want to hand them a $500,000 check when they are 18.

If anyone wants to post and read some interesting comments, look back and let us know what you would have done with $500,000 on your 18th birthday?