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| FEBRUARY 25, 2008 VOLUME 15, NUMBER 35 http://www.elder-law.com/2008/Issue1535.html Legal Issues Face Unmarried Heterosexual Couples, Too Four weeks ago Elder Law Issues described some of the legal problems facing same-gender couples. In most states even a committed couple is unable to marry, and a number of automatic protections and legal arrangements follow the institution of marriage. We described some of the important steps a same-gender couple might take to replicate at least some of the benefits of a marriage. Several readers pointed out that most of the same provisions apply to heterosexual couples who—for whatever reason—have not gotten married. Our readers tend to be very astute, and we had every intention of making the point in a later article. It is now later. That earlier article was actually from guest author Wendy Sheinberg, a well-known New York elder law practitioner and our friend. She made the point that durable powers of attorney, health care directives and other traditional planning devices for end-of-life issues are even more important for same-sex couples. The same is true for unmarried heterosexual couples, and for the same reasons. The law usually assumes that spouses will have priority for decision-making—both financial and personal. When there is no spouse, most states’ laws presume that parents, or children, or other family members, will step up to the highest priority. State laws may differ as to whether that authority is automatic or requires court involvement. Automatic authority is far more common in health and personal care decisions than in financial matters, but even if court action (for example, a guardianship or conservatorship proceeding) is required, most states give spouses and then other family members priority for appointment. Unmarried partners are seldom given any mention in statutory priority lists at all, much less higher priority than relatives. If unmarried partners want to give one another that higher priority, it is critically important that they execute proper advance directives, powers of attorney and possibly other documents, depending on their circumstances and wishes. As with same-sex couples, unmarried heterosexual couples are unable to rely on automatic inheritance benefits provided to spouses. That means wills, trusts and beneficiary designations must be much more carefully considered, reviewed and prepared for unmarried partners, regardless of sexual orientation. Wendy Sheinberg’s earlier article made the excellent point—applicable to heterosexual couples as well as same-sex couples—that the most important issues are sometimes not about money. Unmarried couples should seriously consider signing hospital visitation and burial authorization documents in order to minimize friction in times of crisis. |
Life and Estate Planning Can Be Challenging for Same-Gender Couples
http://www.elder-law.com/2008/Issue1531.html
Same gender domestic partners lack the statutory protections of a spouse; advance directives, wills and trusts can be used to create and support those rights for your partner. Thoughtful planning can help ensure that the person you have chosen to spend your life with will be taken care of as intended. Planning can also empower your partner, the person who knows your heart and wishes the best, to safeguard your wishes and see that your own needs will be met, even at a time when you lack the ability to communicate them.
Durable Power of Attorney
Durable Powers of Attorney can be valuable in the event of illness, incapacity, or your inability to address your affairs. This document is very powerful and can be dangerous in the wrong hands. The statute which gives life to the durable power of attorney provides guidance as to the proper execution of the document and this guideline should be carefully followed. An improperly executed power of attorney is not valid. Many times the defects of a power of attorney will not be discovered until you have become incapacitated, and at that point, you will not be able to execute a new power.
Care should be given in the selection of agents. An agent should not be selected to appease the sensitivity of family members, an agent should be selected based upon their emotional and financial stability and their ability to make effective and appropriate financial decisions. If a member of your family does not like your partner, do not appoint that person as your attorney-in-fact. If you want your attorney in fact financially provide for your partner with your assets, state that direction in the durable power of attorney. Make sure that you chose an agent who will administer your affairs as you would.
Health Care Directives
Without a duly executed health care proxy, your partner is not automatically authorized to make health care decisions for you if you become incapacitated. In addition to appointing your partner as agent, you should name successor agents in the event your partner becomes unable to act for any reason.
End of Life Decision Making
If you have specific wishes regarding end of life decision making, you should provide clear and convincing written evidence of your wishes to your health care agent. If you do not want to have feeding tubes or hydration, you should state this in very clear language. A written statement regarding your end of life wishes will provide your agents with a road map to follow in a time of crisis. The Terry Schiavo case demonstrated well intentioned family members and loved ones may have wildly divergent thoughts on what someone’s wishes are; a living will provides the client a canvas upon which to make their wishes known.
Advance Directives and Guardianship Proceedings
In the event you become unable to manage your affairs and a guardianship proceeding is commenced, the Court will inquire into the existence of valid advance directives. In the event that valid advance directives are in place and you have needs which are not addressed in the directives, a guardian will be appointed. The Court will consider validly executed advance directives in determining who should be guardian. Additionally, many state guardianship laws require that the appointed agent be made part of a guardianship proceeding, which places your partner on equal footing with family members.
Hospital Visitation Authorization:
The law allows a patient to designate in writing who shall have priority of visitation. To ensure that your partner has access during a hospital stay if you become unable to communicate that wish, a written designation should be executed in accordance with the laws of your state. This is particularly important if your next of kin and your partner have a strained or dysfunctional relationship, and your family is anticipated to exclude the non-marital partner from visitation.
Designation for Disposition of Bodily Remains:
Many states have statutes which create a list of individuals who may make burial decisions for a deceased person. In
Last Will and Testament:
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In a properly drafted will you can provide for your partner and provide the same rights in your estate that a spouse would have. You can direct which assets will go to your partner, you can provide your partner with an income stream, a right to live in the domestic residence, protect them in the event of a future illness and/or can provide where the assets will go when your partner passes away.
Life Time Trusts
Wills can be contested, and even without a will contest the probate of a will can delay the distribution of assets to your partner. One way to avoid the inherent issues of probate is with a fully funded life time trust. You can do Medicaid and long term care planning through your trust. The trust give the manager of the trust (called the trustee) the ability to provide for your partner in a way to supplement any available governmental benefits.
If all of your assets name beneficiaries or are held in the Trust, your estate may avoid probate and more importantly, your assets will get to your partner faster.
Beneficiaries of Life Insurance, 401k, IRA and Annuities:
Annuities IRA(s) and life insurance are contracts. Your will can state that these assets go to your partner, but, unless your partner is designated as the beneficiary under the contract with the account manager, your partner will not receive them. If the trust owns the annuity of life insurance policy, make sure there are no inconsistent beneficiary designations on those accounts which conflict with the terms of the trust.
Plan for the Worst, Hope for the Best
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