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Wednesday, March 5, 2008

The Importance of Creating a Life Plan for Lesbian Couples

Everyone should be thinking about a Life Plan. A Life Plan should include the management of your property for today, as well as the future. If you do not make your choices known in advance, the legal system will make them for you. If you do not create a will, your property will go to those whom the state feels are your heirs. If you become ill or incapacitated, the state will decide who your guardian will be, unless you have specifically named a someone in advance.

When dealing with the US legal system, health care, property distribution and personal medical decisions are all based on heterosexual presumptions, leaving committed lesbian couples in a dangerous position if they face a medical crisis or death.

So what happens if you die or become incapacitated and you do not have legal documents to declare your wishes?
If you are legally married, a spouse would be the closest legal family member and the state would appoint him or her to make all decisions for you if you should become incapacitated. In the event of your death, your spouse would inherit your estate. For lesbian couples in a committed relationship, there is no protection as it stands now for a life partner. Because lesbians and gay men cannot legally marry in most states, you and your partner are considered single adults, regardless of the amount of time that you have been with your partner. And as single adults, the law turns to your parents or adult children to make legal, financial or medical decisions or to distribute your property to in the event of your death. If you survived your parents, then a sibling will retain the rights.

Make Your Choices Known!
Whether you are single, or in a long-term relationship, you can protect yourself from the states hetero-centric laws by creating legal documents that declare your own personal choices. While many of us only begin to look into life planning when we are settled into a long-term relationship, have children or face a life-threatening illness, legal documents such as wills and powers of attorney are important for everyone, TODAY! Drafting a will or durable power of attorney for health care or financial decisions is advisable for everyone who wants to make his or her own choices about medical decisions and property distribution, rather than have the law decide or have their wishes challenged by a family member.

You should never take anything for granted when it comes to families, medical emergencies, employment benefits and death. People sometimes do unexpected things around death, and opposition can arise within a family where and when you least expect it. So be sure to create documents while you're healthy, so there is never any question about your decisions.

Here are some important documents that you should consider:

A will is used to distribute your estate, or your belongings, following your death. Although probate laws vary by state, having a will in place makes it easier to distribute your property according to your wishes, and can avoid a lengthy and costly court process.

If you are in a committed relationship, never assume that your estate will simply be given to your life partner when you die. Without a will, your estate becomes the property of whomever the state assigns according to the law. Because gay relationships are not legally recognized, the state will not automatically assign your estate to your life partner unless you have a will.

Power of Attorney and Durable Power of Attorney
A power of attorney is a written document that allows another person to act on your behalf during your lifetime. There are many situations in which you would want someone to act on your behalf. For example, if you are out of town and you want your partner to cash your bonus check, can she or he do that? Or let's say that your partner is not listed on the deed to the house and you are in Paris on a business trip. The bank calls with a question about your last mortgage check. Can your partner handle the problem? With the right paperwork in place, he or she is able to settle what you may have thought was a "no big deal" problem.

Typically, the power of attorney is valid only for acts performed on your behalf when you have legal capacity, that is, when you are not disabled, mentally incompetent, under some other incapacity or dead. If you want the power of attorney to continue in the event that you become ill or incapacitated, it must be written as a durable power of attorney. Under the law, the power of attorney is "durable" if it contains the following or similar words: "This Power of Attorney shall not be affected by subsequent disability or incapacity of the principal or lapse of time." All states have some form of the durable power of attorney. By executing a durable power of attorney, you avoid the need for any expensive court proceedings for guardianship or conservator ship, and you protect your partner from losing control over your assets. If you are in a committed relationship, your partner should also have these documents so that you can act on his or her behalf.

One additional note - There is a risk of abuse when using a general power of attorney. If you do not put time limitations or activity restrictions into this document, then your partner or whomever you name as your attorney-in-fact could clean you out... Yes, this does really happen. Without limitations or restrictions built into this document, you are giving your agent full legal power to make decisions on your behalf. One strategy is to draft the durable power of attorney so that it only takes effect when you are disabled and states what powers the attorney-in-fact has.

Power of Attorney for Health Care
A power of attorney for health care allows your life partner, or whomever you designate, to make any and all medical decisions on your behalf should you become incapacitated. Because nontraditional, long-term relationships have no legal status, disastrous consequences can result when one partner becomes incapacitated or disabled. It is important to note that hospitals, nursing homes, hospice facilities and similar health care facilities might be forced by a law to exclude your life partner from visitation if you do not have the proper documents in place.

Directives to Physicians or Living Will
Sometimes known as a living will, a directive to physicians is a statement of preference for the types of health care that may become necessary to sustain your life. This form is to be used at a time when you are unable to make your own wishes known. The living will is an essential because it gives specific instructions to your health care providers about the health care treatments and procedures you do or do not want if you cannot speak for yourself.

Appointing Guardianship
In addition giving your life partner or someone you choose power of attorney for medical and financial decisions while you are incapacitated, you also need to appoint someone as your guardian.

Designation of Beneficiaries
It is important that you designate your life partner or someone you choose as a beneficiary for non-probate assets such as life insurance and 401k holdings. Although most insurance and financial institutes provide beneficiary forms at the time that you purchase or establish these assets, it is surprising how many fail to complete these essential forms.

Disposition of Remains
Most people think that they can make their wishes known about how they wish to be buried in their will. Unfortunately, the will is not read until long after you are buried. Therefore, if you have specific wishes as to the type of burial that you prefer, you need to make them known in a disposition of remains document. This is most important if you are single or in a committed relationship. Without proper documents in place, the state will appoint someone to handle your funeral arrangements. If, for example, you and your partner wish to be buried together, you need to make those wishes known now.

Protecting the Relationship During Life
Regardless of the legislators presumptions about "family" and "guardianship," all people have the absolute right to plan in advance, and to appoint a specific person to handle their affairs in the event they become disabled.

If you don’t plan, it is certain that you and your partner will be at the mercy of your families. So, make a plan, write it down in the proper form and know, in advance, that if (or when) something terrible happens, you are prepared. The last months, weeks, days and hours are a time when love, dreams, grief and hope can be shared. Life has a way of getting between you and your desire to plan for life-altering events. This is too important to hold off. Do not let life get in the way.

How Do You Get Started?
First and foremost, contact an attorney in your area that is familiar with estate and life planning and family law. You will want to use an attorney to ensure that your documents are properly prepared per local laws and that they are properly recorded. An attorney can also answer any questions that you may have and provide you with the necessary legal advice. Gay and lesbian couples should work with an attorney that is familiar with gay issues. You can locate an attorney by using your Yellow Pages or the Web. Gay couples may want to contact a local GLBT Community Center for a recommendation. If you are uncertain about any attorney, contact your local Bar Association for assistance.

Gay and Lesbian Couples with Children
Families with children must deal with all sorts of legal issues to ensure that your families are protected in the event that you or your life partner dies or becomes incapacitated. If you have not already done so, we highly recommend that you contact an attorney who is well-versed in GLBT family law to ensure that your rights as a parents are protected.

This information was gathered from various articles and law sources including: GLEAM, Lambda legal, Rainbow Law

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