Real-life situations are a good way to introduce some of the many legal issues that face the LGBT community every day. Let’s take a look at how disability can affect us and complicate our affairs; and how careful planning ahead can make a very real difference.
Dear Q Lawyer: My partner Jack and I are in our 60’s and have lived together for 16 years. Recently, Jack had a stroke and is now unable to care for himself. He has memory problems, and I am trying to take physical care of him, but his sister insists on handling his financial affairs. I believe she is taking advantage of his condition, because she brought over several papers and persuaded him to sign them. Now she tells me that he has given her authority over all his finances, and she is going to make changes in his bank accounts and investments. I am really concerned, because Jack and I have several joint accounts, and I don’t want her to change them. Also, we own the house jointly. Can she take over the house, too? Signed, Roland
Dear Roland: There are several issues here. What papers did Jack sign? Did he ever give you a General Durable Power of Attorney, or an Advance Health Care Directive so you could act for him if he became incapacitated? Did you and Jack register as domestic partners in California? If you did, you may have various rights that are similar to those of a married couple, and it might not be possible for Jack to give away those rights just by signing a paper. If you are not registered, there is still the fact that you are a joint owner of the property and the bank accounts. Jack can’t sign over your ownership to anyone. However, in joint accounts, either owner is entitled to use of the whole account. Technically, if the sister is now Jack’s legal agent, she could take all the funds out of the accounts, leaving you with nothing. I recommend that you see an attorney immediately to determine what you can do to protect your own share of the assets. And contact your local elder abuse authorities to discuss whether the sister used undue influence to obtain control of Jack’s finances.
Dear Readers: This is a complicated situation that could result in serious financial loss for Roland. Domestic partners must take extraordinary steps to safeguard their financial well-being in case of incapacity. Blood relatives are not always concerned about the remaining partner when illness strikes. And sometimes, relatives don’t act in the best interests of their own kin.
For both same-sex and heterosexual couples, incapacity is an all-too-familiar situation as people live longer than ever before. Studies show that nearly all of us will face at least a temporary disability at some point in our lives, and older Americans have an increasing probability of long-term disability as they age. Over 1.5 million people lived in nursing homes in 2000 (the most recent year for these statistics). Most of those have difficulty managing their own affairs, and many are not competent to do so at all. In addition, nearly 25% of all American households provide care, at some level, for partners, relatives or friends age 50 or older who can’t manage on their own.
If you are partners now in good health, show your commitment to each other by executing essential documents like a General Durable Power of Attorney, authorizing your partner to act as agent for your financial and personal affairs if you become incapacitated; and an Advance Health Care Directive which records your wishes about medical care and authorizes him or her to make health care decisions for you.
Dear Q Lawyer: My partner, Roger, is 77 years old and has developed Alzheimer’s Disease. We have lived together for 31 years and we share expenses and own our home together, but we are not Registered Domestic Partners in California. We always talked about setting up a Living Trust, but never got around to doing so. Now I need to manage our finances and Roger’s health care as he will become increasingly disabled as time goes on. Is there some paperwork I can fill out to give me the authority to pay bills and take care of things for him? Signed, Gerald
Dear Gerald: The answer depends on whether your partner, Roger, has been declared incompetent to manage his own affairs. Is he in the early stages of the disease, but still able to clearly understand his finances and personal situation? If so, then it may not be too late to establish a Revocable Living Trust, with General Durable Power of Attorney and Advance Health Care Directive, so that you can become his agent or “attorney in fact” when he is found by his doctors or a court to be no longer competent. If Roger is still competent to sign the documents, you will have the necessary legal authorization to handle his affairs when that time comes. In addition, the Living Trust can provide for immediate transfer of Roger’s share of the house and other assets to you upon his death. If Roger is not competent to sign these documents now, then the only recourse is to apply for conservatorship through the court.
Dear Readers: This is another example of a situation that will become more and more common as we age, and for the LGBT community, an especially critical issue because partners, unless they are registered domestic partners in California, do not have any of the protections the law provides to spouses when it comes to taking over financial responsibilities, inheriting assets and property and managing health care. Even when registered, partners do not have full protection, since Federal laws do not recognize registered domestic partnerships at all. Preparing for the possible disability of one or both partners requires careful planning, and should not be put off until tomorrow.
Dear Q Lawyer: My partner, Jenna, has a California Advance Health Care Directive that she signed many years ago, before we moved in together. It names her previous partner as her agent if she becomes ill or disabled, and she wants to cancel it and make another Advance Directive that names me as her agent instead. How does she cancel this document? Can her former partner keep her from making this change? Signed, Saundra
Dear Saundra: An Advance Health Care Directive can be revoked at any time by its maker. There are several ways to do this. She may write a revocation and give it to her supervising health care provider; she may verbally inform that health care provider that she is revoking the prior document; or she may complete a new Advance Health Care Directive which will automatically revoke all previous Directives. Jenna should notify every person, health care provider or hospital, clinic or care facility that has a copy of the prior Directive, and give them a copy of the new one. Jenna’s former partner can’t prevent any change in the Advance Health Care Directive under any circumstances. Jenna’s revocation or replacement of the document voids the prior version completely.
Dear Readers: Our relationships and situations often change as the years go by. It is essential that legal documents that affect our health, finances and family relationships be kept up to date. Jenna realized (belatedly) that her Advance Health Care Directive should be changed when she changed partners. If she had become incapacitated and was physically or mentally unable to revoke that document in one of the ways described above, Saundra would have had no legal authority to act on behalf of Jenna; and the former partner would still have been able to make critical health care decisions for Jenna. Lesson: review all legal documents and update them whenever there are changes in your family relationships, and health or financial situations.
BYTAG
This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community. Previous articles can be viewed at www.heritagelegal.com. This information is intended for general information purposes only, and is not intended to provide legal advice. Heritage Legal, PC has offices in Palm Springs and San Diego, CA. The firm focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and bankruptcy. Chris welcomes questions and comments, and can be contacted at 888.974.3748, or by email: chris@heritagelegal.com