Estate Planning

Estate Planning

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Mapping it all out – protecting yourself and your loved ones with estate planning

Estate planning isn’t typically high on the list of priorities for any couple. It typically makes it onto the radar if a couple has children, is about to travel a long distance in a plane, or has had some sort of conflict with a family member and they want to insure that individual doesn’t cause a problem for their partner when they pass.

As an LGBTQ individual or couple in Maine, however, there are few things you can do to protect yourself and your partner and family from difficulties they may encounter when your life comes to an end. While filing with your city or the state as domestic partners offers your partner the benefits of inheritance, it’s not a guarantee that everything will go the way you’d like – after all, when all is said and done, you’ll be dead, and won’t be able to help your partner and family progress smoothly through the funeral and the division of your estate.

What you can do to help your family is to set up an appointment with your attorney and get your estate planning in order. There are a number of pieces to this process, including powers of attorney, advance directives, and wills. Each piece of the puzzle serves a specific role in assuring that your family will be cared for, the funeral and process after will go off without a hitch, and your wishes will be respected and honored by those who love you the most.

Advance Health Care Directives and the LGBTQIA Community

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Usually it takes a series of noteworthy occurrences to call our attention to things we may take for granted.  Perhaps this is because of the seeming recent advances in LGBT rights (or lack thereof, as the case may be).  Within the last week we, as a community, have been reminded of the necessity of advance health care directives.  An advance health care directive, sometimes called a health care proxy or medical power of attorney, is a document that every individual should have. 

 The purpose of an advance health care directive is, in part, to name your agent for health care issues and decisions.  Next of kin sometimes try to interfere with the designated wishes of their family members.  By creating an advance health care directive, you can ensure as best able that your family follows your health care wishes.

The President’s recent memorandum requests that rulemaking be initiated, to ensure that hospitals that receive Medicare or Medicaid comply with federal regulations, and that additional recommendations by the Department of Health and Human Services on these issues be provided to the President within 180 days of April 15, 2010.  While the underlying issues and stories address and acknowledge the issues of couples and chosen, non-blood related, family within the community after the aftermath of the tragic separation of Clay and Harold, the memorandum does not create any right or new law that protects the community and its members.  Despite this recent action, every individual should take steps to protect themselves by taking the time to create an advance health care directive. 

In Maine, the standard advance health care directive form published by the State of Maine incorporates elements that allow you to designate your health care agents, your end of life sustaining treatment, funeral or burial wishes, a DNR (short for “Do Not Resuscitate”), and a section for other requests.  These sections all provide places for you to designate your wishes for someone to act on your behalf.  You can specify individuals you do not wish to be consulted about your health care decisions.  You can also specify what you want your agent to do on your behalf.  You can use a directive to designate visitation for the family that you have chosen in life, not just to your near and dear blood relatives.  In addition, if you are transgender, you can request that your family or agent and medical providers use appropriate gender pronouns and that they provide continuing hormone or other medical treatment.

In short, an advance directive gives the individual power to say what he or she wants for treatment and who he or she wants to be able to make those decisions, if they become incapacitated.  This crucial document is worth the time and thought to not only create, but to discuss with your family, loved ones, and medical providers.

Why it matters to hire an attorney with knowledge of LGBT law

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If you are someone who is a member of the LGBTQI community who needs to consult with a lawyer, you should consider looking for someone who has a practice that handles a lot of LGBTQI issues or who has a lot of LGBTQI clients.  Many legal issues that LGBTQI individuals face are matters that generally only affect individuals who do not have legally recognized relationships or are issues that only affect transgender individuals.  Many of these individuals also face discrimination. Even if your situation is one that is not related to your sexual orientation or gender identity, it is often more comfortable to have a lawyer who is familiar with your life experience and relationship status, without extensive explanations.

In estate planning matters, the lack of legal recognition for same-sex relationships often means that attorneys must use different means to protect client’s assets or interests than for other individuals.  Wills or powers of attorney sometimes require specialized language to protect assets or the interests of a surviving partner.  Individuals in same-sex relationships often face tax issues, gift transfer matters, or other problems that married couples do not.

Same-sex couples also face unique situations in family law.  An attorney with experience in this matters can advise you on how to protect yourself in a new relationship, or how to dissolve a relationship while protecting your rights regarding children or property.  Even experienced family law attorneys without experience or knowledge of LGBTQI matters sometimes advice clients that there is nothing that can be done because of the law.  Attorneys with experience in these areas know what can be done, and often use creative approaches that can resolve your legal issues.  These attorneys also know how or if a marriage, civil union, domestic partnership, or adoption performed in another state or country will be recognized in the state where the attorney practices. 

Finally, transgender or non-gender-conforming individuals face a host of legal issues that other people do not.  These individuals often need to change gender markers on identity documents and often change their names.  It is imperative that these individuals are represented by a lawyer who, not only knows what special procedures they must follow, but also treats clients respectfully and compassionately and uses the correct name and pronouns. 

Members of the LGBTQI community are often treated differently by the law.  In hiring a lawyer, they should make sure that the lawyer they hire is aware of the differences and has the knowledge and experience with these differences to represent them effectively.

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