Rainbow Legal Talk

Partners in Civil Unions and Marriages Still Need Planning--Part VII of VII

To sum things up, marriage for gay and lesbian couples is necessary for full equality in our society, but those equal rights are not necessarily exactly what ANY couple would want if they have a choice. The thing is all couples DO have a choice if they are willing to work with an attorney on a good life and estate plan.

The documents we discussed for even married couples were:

• A Revocable Living Trust
• Financial Powers of Attorney
• Healthcare Powers of Attorney
• Nomination of Conservator

Our firm also recommends having a Back-Up Will, a Living Will and some other form documents to complete the plan for any couple, married or otherwise. For more information, please visit our website at www.livingtrustlawfirm.com.

Until marriage is an established right for every couple, gay and lesbian couples have a particular need for life and estate planning to protect each other. Even then, it is clear that all couples will need to put a good plan in place to cover those wishes the law does not automatically give you because you are married.

Partners in Civil Unions and Marriages Still Need Planning--Part VI of VII

Jane Doe and Janet Roe as a committed lesbian couple do not have the right to make financial decisions for each other without a financial power of attorney. The question is, will they need a financial power of attorney if they are allowed to marry? The answer is yes, for various reasons and even if married, Jane and Janet should have financial powers of attorney.

The first reason that Jane and Janet should have financial powers of attorney is that they typically would want both of them to have authority to handle the family finances even if the other were not in town to sign documents. If that is what they want, then being married is not enough. If Jane and Janet were refinancing their home and Janet suddenly had to go out of town on business, then Jane would not be able to sign for Janet unless she had a power of attorney. If the cable television account was in Jane’s name and Janet was calling to upgrade the service they were receiving, then she would probably not be able to unless she had a power of attorney. If Janet wanted Jane to call their stock broker and sell $10,000 worth of stocks from Janet’s individual account, then she would not be able to without a power of attorney. Even for married couples, a financial power of attorney is sometimes necessary to handle some transactions.

Another reason Jane and Janet need a power of attorney is in case one of them were incapacitated and the other passed on or were also incapacitated. Who would handle Jane’s finances if she and Janet were incapacitated? The answer is not as clear as with healthcare decisions, and the process of naming someone is considerably more complicated and expensive. First, Jane must be declared incompetent by a court before anyone can step in to handle things, and this is an often embarrassing procedure where an attorney should be hired to make sure it is done properly.

The second step after Jane is declared incompetent is for the court to appoint someone to handle Jane’s finances. Anyone with an interest can apply to be Jane’s conservator and gain the power to liquidate Jane’s assets, pay bills, sell Jane’s house and buy another one, etc. Jane may be concerned about who would get those powers, but a court would be there to oversee the process and make sure her assets were not being stolen. But this is also an expensive process and is not necessary if a financial power of attorney agent is handling things outside of court.

There is also a document that our firm uses just in case someone brings an action in court to appoint someone to handle finances even though there is already a financial power of attorney in place. The Nomination of a Conservator form names people your prefer to handle financial matters if a judge were to name someone. In keeping things simple, nearly all of our clients choose the same people they named as financial power of attorney agents.

Partners in Civil Unions and Marriages Still Need Planning--Part V of VII

Jane Doe and Janet Roe, if married, would be able to automatically make healthcare decisions for each other if they were incapacitated. This is because under North Carolina law they would be the “next of kin” just as much as if they were a hetero married couple. But what if something happened to both of them and they did not have a healthcare power of attorney? They might not like who gets to make healthcare decisions for them.

If Jane were not able to make her own healthcare decisions and Janet was also incapacitated, then Jane’s next of kin can step in and make decisions for her. Jane’s next of kin would be her son John Doe, if he was over 18. If he was not over 18 and Jane’s mother was deceased, then Jane’s estranged and rabidly anti-gay father could make healthcare decisions for her. (Probably not what Jane would want.) If he were deceased or refused to make decisions, then Jane’s flaky, drug-abusing sister could make decisions for her.

You’re starting to get the picture. For any married couple, the most important healthcare agents are listed after the spouse as the primary agent, and this may be even more critical for gay and lesbian couples. If Jane wanted to make sure that her spouse Janet were listed first, and then her cousin Marty, and then her friend Susan were listed as healthcare agents, then it needs to be put in writing by an attorney, signed, witnessed and then notarized. But what about financial decisions? We’ll talk about that next.

Partners in Civil Unions and Marriages Still Need Planning--Part IV of VII

Looking at Jane Doe and Janet Roe and their son John Doe, if Jane and Janet passed on together in a car accident, then John would inherit everything. Let’s assume that Jane and Janet were concerned about John having enough money for college and took out $1 million life insurance policies on each other. Suppose also that they told their parents that they wanted them to handle the money for John until he turned 35, they told everyone they knew that 15-year old John would not be responsible enough to handle money until he was at least 35, and they published a notice in the local newspaper saying that John is not a responsible child, and for the love of God if anything happened to them please do not let John get control of their assets until he turned 35. If Jane and Janet passed on, then John would get everything including the $2 million when he turned 18.

The law is the law ONLY if you fail put your wishes in writing through a properly executed life and estate planning document. In workshops and seminars I hear all of the time “But that’s not what they wanted! Wouldn’t a court try to make sure that their wishes were carried out?” The answer is no, they would not, and there are very good reasons for this.

Judges understand that there are a lot of people who will lie when money is on the line, and deceased people can not come to court to testify about what they wanted. The courts would be packed with people contesting estates if all they had to do was prove “this is what they would have wanted.” If you thought the courts were crowded with frivolous lawsuits before, then imagine what would happen if everyone who died without a properly executed estate plan had to have a judge decide “what they would have wanted,” and anytime there is more than one person who might inherit property, then of course each of them would be arguing that they would have received everything because the deceased person liked them best. The courts would come to a standstill.

Instead, the law on estate plans has been very clear for hundreds of years: either the person has a validly executed trust or will, or they do not. If all of the formalities have been observed in the signing, witnessing and notarization of estate planning documents, then it is valid. If they were not, then it is not valid and no one will try to look at their “intent.” The rationale is: “If they really intended something, then they would have taken the time to put it in writing and have it witnessed and notarized according under law.

It’s clear that even married couples need to make sure their inheritance wishes are put in writing and properly witnessed and notarized. Gay and Lesbian couples can not count on marriage to make sure that their intended wishes are carried out because marriage does not protect as much as you may think. Next, we’ll take a look at some of the other life and estate planning documents and why they are also important to have.

Partners in Civil Unions and Marriages Still Need Planning--Part III of VII

The common problem hetero, gay and lesbian couples will all face is what happens to their property and children if they do not put their plans in writing? We’ve already seen that marriage is not a magical cure that eliminates the need for legal planning. The law is also deficient in handling the vast majority of property distribution plans when it comes to children’s ages.

Because the age of majority is 18 for just about everything except drinking alcohol, that is the age children receive any inheritances free and clear. Let me ask a question for those of you in their 30s or later: what would you have done at age 18 if someone suddenly gave you $500,000? Here are some of the most frequent phrases I hear from clients: “Hummer,” “Vegas,” “Cabo,” “party 24-7,” and “Shop ‘til it’s gone.”

After discussing these issues with my clients, most agree that 25 is a better age to start giving control of a larger inheritance, and some clients choose to spread the inheritance out over two or three payments. It is fairly common for my clients to give one-third at 25, another third at 30, and the rest at 35. Until those ages, a trustee who they appointed handles investments and paying expenses for the beneficiary. Without planning, the beneficiary gets everything at 18.

In the 11 years I have been practicing law, only once was I comfortable with 18 as an age of inheritance. That was when the couple’s 16 year old daughter called to book the appointment, called to follow up to make sure that her parents had kept the appointment, and after the documents were signed followed up to make sure that we had a copy of all of the documents in case her parents misplaced them. I also found out when discussing issues with my clients that their daughter, at 16 years of age, already managed all of the household bills and expenses, balanced the checkbook, and made sure their taxes were filed on time. In the 11 years I have been practicing law, I have also not come across parents who were equally confident in their minor child’s ability to handle finances. Next, we’ll take a look at what happens if an irresponsible and young John Doe inherits property from his parents Jane Doe and Janet Roe if they do not plan ahead.

Partners in Civil Unions and Marriages Still Need Planning--Part II of VII

In looking at the rights that married couples have and partners would get if they were allowed to marry, let’s first look at the right of inheritance. Like most hetero married couples, gay and lesbian couples want their partner to inherit everything. Their concern is that they provide for each other in sickness and in health, and also after death. Unfortunately, North Carolina law does not provide that for married couples who fail to write their wishes done.

If Jane Doe and Janet Doe are married with a son John Doe and Jane passes on, then Janet will get the following from Jane: one half of all real estate ,the first $30,000 of personal property and financial accounts, and then one-half of the rest of the personal property and financial accounts. John Doe would get the rest of the property at age 18. Not exactly what Jane and Janet would want, huh?

Since we’re doing what ifs, what if there were no children to account for? North Carolina is only a little kinder to Janet if Jane passes on and Jane has other relatives. Janet would get one half of all real estate, the first $50,000 of personal property and financial accounts, and then one-half of the rest of the personal property and financial accounts. The rest would go to Jane’s parent or parents, or if deceased to any brothers or sisters (or their children if they were deceased). If none of them weren’t alive, then that share would go to grandparents, and if they were not alive, then to Jane’s aunts and uncles. Basically, the only way under North Carolina law that Janet would receive all of Jane’s estate is if Jane had no relatives any closer than fourth cousins.

Either that or Jane and Janet could work with an attorney to put their wishes in writing so Jane and Janet are both protected. While equality of marriage should remain a goal of the GLBT community, it is not a cure-all for legal protections. Next, we’ll take a look at what happens if Jane and Janet pass on leaving property to their son John.

Partners in Civil Unions and Marriages Still Need Planning--Part I of VIII

While there seems to be a see-saw of civil rights across the nation between state constitutional amendments banning gay marriage and state legislatures and courts approving marriage and civil unions, practical life and estate planning issues are being lost in the shuffle. Like the proverbial dog chasing the car down the street, what happens when the car is actually caught?

Right now, committed gay and lesbian couples in most states have to work with an attorney to create their life and estate plans. If they want their partner to make financial decisions for them, then they need a financial power of attorney. If they want their partner to handle healthcare decisions for them, then they need to execute a healthcare power of attorney. If they want their partner to inherit everything if they pass on, then they need to draft a revocable living trust and set up their accounts appropriately.

It is a common misconception in the GLBT community that “if we were only allowed to marry then we wouldn’t need to make any of these plans.” The fact is that married couples also have a need to plan because the law does not even fully protect a spouse.

Let’s play a little “what if.” What if gay and lesbian couples were allowed to marry in North Carolina? What if Jane Doe and Janet Roe got married, had a son named John Doe, and then Jane became too ill to handle her own financial affairs? What if Jane passed on? What would happen to her spouse Janet? What would happen to their son John? What happens if Janet is unable to handle things for Jane (whether deceased or ill)? We’ll go through some scenarios under North Carolina state law to show just how much, or little, spouses have in terms of protection.

Don't Ask, Don't Tell Policy Hurts War on Terror

While I don't expect the Bush Administration to do anything about it, one of the results from the Iraq Study Group coupled with other studies have shown that dismissing military personnel simply for being gay has hurt U.S. anti-terrorism efforts. A recent General Accounting Office report has shown that more than 300 language experts, more than 50 of whom were proficient in Arabic languages, were dismissed under the military's Don't Ask, Don't Tell policy. See the story at http://uk.gay.com/headlines/10772

The obvious problem is that intelligence is not being processed quickly enough because we do not have enough translaters. (This is actually something which has been shown to be a contributing factor to 9-11 since the U.S. had intercepted messages pertient to the attacks but which were not translated until after the 11th because of a lack of experienced translators.) Another problem with the Don't Ask Don't Tell policy is that people serving in the military who have been complying with the policy are still being dismissed because they are being outed by other members of the military. This actually has cost the military about $369 million to train new people to take the place of people who have been dismissed. http://www.msnbc.msn.com/id/14052513/

Considering the huge problem of terrorism and the huge gaps in U.S. intelligence, maybe its time to put the interests of national security ahead of institutionalized bigotry against gays and lesbians who wish to serve their country during a time of war.

Brownback's "Gay Apartheid"

Here's a good follow up to the previous post about Senator Brownback's hold on Judge Neff's nomination. John Whiteside called Brownback's hold on the nomination Brownback's "gay apartheid," and he has a point. Any time someone actually has empathy or experience that goes against the Right Wing's desires, then judges and jury members should not be allowed to rule on cases.

"What's next? Someone who has too many black friends can't rule fairly on an affirmative action case? If you're not a Christian, you can't possible rule fairly in a case on separation of church and state? Perhaps no female judges should be allowed to rule on any sex discrimination cases." See the full post at: http://blogs.chron.com/bluebayou/2006/12/sam_brownbacks_new_gay_aparthe.html

The Regressive Right has a few things going for it in its successful campaign of hatred against gay couples, which in turn supplies mountains of cash and votes from people who think they are doing "God's work". The biggest one is that many of their supporters don't know any gay people well enough to sympathize with them, and the media primarily enforces stereotypes that make these right-wingers not want to know them. Brownback's attitude is to misuse government to keep those people who may actually know gay people (and may actually see that they are not the proverbial boogeymen the Right wants them to appear) away from legal decisions.

Yes, calling it gay apartheid is accurate.

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.