Estate Planning Concerns facing the LGBT Community

At Nichol & Doering, PLLC, we always stress the importance of having estate planning documents with our clients.  These documents include Wills, Trusts, and Powers of Attorney (both general and medical).  With these documents, you can tell others how to take care of yourself and your family when you are no longer able to do so.  Having these in place is very important for LGBT Community, especially while the case for Gay Marriage here in Michigan is pending in the Michigan Supreme Court.  A good set of estate planning documents will ensure that LGBT couples can make the same decisions as their heterosexual counterparts. 

Before we get into detail about why the documents are important, let us go through a brief overview of what all these documents are.  First, there are two different kinds of Powers of Attorney, first a Medical Power of Attorney and a Durable Power of Attorney.  A Medical Power of Attorney allows an individual (the Principal) to designate another individual as his or her Patient Advocate.  The Patient Advocate is permitted to speak with doctors and make medical decisions on behalf of the Principal according the language in the document.  A Durable Power of Attorney works in the same way as a Medical Power of Attorney where the Principal is appointing an Agent to make decisions on their behalf.  These decisions are usually financial in nature, such as maintaining bank accounts, paying bills, selling property, and can include anything that it is not medically-related.

Wills and Trusts are documents that express the wishes of an individual on how he or she wants their family and property taken care of when they are no longer here.  These are extremely important for parents with minor children as both documents have the ability to appoint a Guardian for the minor children.  The basic difference between the two is that a Trust gives an individual more control on how and when a person can receive property from their estate, whereas a Will designates what will be done with property.

For the LGBT community and couples in particular, having these documents will be important for several reasons.  First, in the context of Powers of Attorney, LGBT couples do not have the “Next of Kin” rights that heterosexual couples have.  Therefore, it is likely that doctors and other professionals will not speak about medical decisions with the LGBT partner.  But with a Medical Power of Attorney, the Patient Advocate can speak with the doctors regardless of that person’s relationship to the Principal.  The same applies to a Durable Power of Attorney.

Second, LGBT couples do not have the same protections as heterosexual couples when it comes to children.  Because Michigan does not currently have Gay Adoption, whoever has been designated as the legal parent cannot guarantee that his or her partner will be the legal parent if he or she passes away.  However, by having a Will or Trust, an individual can designate his or her partner as the Guardian of the children should he or she pass away before the children reach 18 years of age.

Additionally, without a Will or Trust, a person’s property would go through intestacy and be divided amongst his or her heirs.  In this situation, an LGBT partner would not be considered an heir to that person’s property.  With a properly drafted Will or Trust, a person can devise their property to whomever they wish.

We hope that this provides you a good insight into the importance for LGBT couples to discuss estate planning with themselves and an attorney.   Thank you for taking the time to read our blog and please feel free to contact us if you have any questions or comments.

15% Discount on Estate Planning Documents

There are only TWO WEEKS LEFT to take advantage of our 15% discount on estate planning documents.  To give an idea of the savings you could have, please review the list below:

Will $255 with discount.

Power of Attorney (Durable or Medical) $127.50 each with discount.

Joint Wills $382.50 with discount.

Trust starts at $850 with discount.

Couples Package (Will, DPOA, MPOA) $765 with discount.

Individual Package (Will, DPOA, MPOA) $425 with discount.

 

To qualify for the discount, you must set up an initial consultation meeting with one of our estate planning attorneys.  The documents did not need to be finalized to qualify.  If you have any questions or would like to set up an initial meeting, please contact our office at 517-583-0520.  

Why Should I Hire An Attorney Blog Series Part 1: Estate Planning

Introduction

Many people often wonder why they should spend the money on having an attorney draft a Will or other estate planning documents. Sometimes for estate planning clients it can be hard to see the value they receive because the impact of a Will or Power of Attorney may not be realized until a future date and often when the client may have passed away or become incapacitated. In this blog I will discuss the variety of Estate Planning documents that our office can draft for you, the benefit each of these documents will have for you and your family, and why you should hire an attorney rather than doing it yourself.

(1)    Wills and Trusts

The first document people often think of when they are developing an estate plan is a Will or sometimes a Trust. These documents are used to appoint individuals to manage the distribution of your assets once you pass away. The Will or Trust provides directions and powers to make sure your goals are achieved.

Why should I have a Will?

It is common for people to think that they do not need to have a Will for a variety of reasons. They may think they are too young to need estate planning. Maybe they don’t think they have enough property to benefit for having a will. However, as estate planning attorney I can tell you that no matter a person’s age, marital status, economic situation or family makeup, everyone can benefit from having a Will.

On the most basic level, a Will provides your loved ones clarity and guidance on how to manage your assets and other affairs once you are no longer around. A well-drafted Will allows your family to focus on grieving for you rather than having to worry if they are handling your property as you would hope. Further, a Will provides you the peace of mind in knowing that when you are gone the people you love will be taken care of in accordance with your wishes.

Individuals with minor children should also have at least a Will because a Will allows you to name a guardian and conservator for your minor children. A directive in your Will about who you want to take care of your children if you are not able to will help make sure your children are taken care of as you would want without a possibly contentious probate court battle.

(2)    Durable Power of Attorney

Next, people may think about the idea of having a power of attorney drafted. A Power of Attorney is, at its most basic level, a document that appoints another individual to act as your agent and help you manage a variety of different tasks. They can be as broad or as limited as an individual desires. There are two major forms of Power of Attorney that can be drafted and as I will explain an individual should have both.

(1)    Durable Power of Attorney for Finances – This document appoints someone as your agent to manage your financial affairs for you, and if made durable, will allow that individual to manage your financial affairs if you become mentally incapacitated and unable to manage them yourself.

(2)    Medical Power of Attorney – This document appoints someone to make medical decisions for you when you are unable to communicate with your doctors about your care. It can also include instructions to the agent on how to deal with certain situations involving your medical care including: end of life decisions, disputes between physicians and disputes between family members.

Why should I have Powers of Attorney?

As with a Will you may be thinking that you are healthy, independent and don’t need assistance in managing you financial affairs. You may think you don’t have enough assets to make a financial power of attorney necessary. But as with a Will, Powers of Attorney are not just drafted to help you now, they are meant to help you down the road when you are unable to manage your affairs on your own.

While lots of people think about avoiding the Probate Court when the pass away, very few people think about the aspect of Probate Court that may affect the affairs of individuals who are alive. I am speaking about Guardianships and Conservatorships.  A guardianship is a probate court mechanism to appoint someone to help an incapacitated individual manage their daily life such as living arrangements, medical care, transportation etc. A conservatorship is a probate court mechanism to appoint someone to manage the financial affairs of an individual who is unable to do so themselves. Both of these arrangements require documents to be filed with the court, a court order investigation, and a public hearing in front of a probate judge. These processes can be time consuming, stressful and expensive on the incapacitated individual’s family. Additionally, once a guardian and/or conservator is appointed the court will require annual reports to be filed and may require additional hearings to approve certain actions of the guardian and/or conservator. With a well-drafted Durable Power of Attorney and Medical Power of Attorney, you can avoid your family having to involve the probate court in your personal affairs.

Why should I have an attorney draft my Will, Trust, Durable Power of Attorney – Financial, Medical Power of Attorney/Patient Advocate Designation?

With the existence of fill in the blank forms, legalzoom.com, and other options available to those who would like to do it themselves people sometimes wonder why they would need or want an attorney to draft their documents.

First, while there are services such as legal zoom that offer Wills at a low price and you may be able to find forms at libraries or elsewhere to assist you in drafting your Will these may not be the right document or appropriate language for your particular situation. Fill in the blank forms only show the limited basic information needed to generate a legal document. And services like legal zoom only offer you a boiler plate form that you can fill in with the basic information about your assets and family. However, a generic standard Will with only generic language may not be appropriate for you, your family, your assets or your estate planning goals. Discussing your family, your assets and you wishes regarding the disposition of your property after death with an attorney can ensure that the Will or Trust that is drafted provides for your loved ones the way you want to when you’re no longer able to do so.

With regards to a Durable Power of Attorney for Finances or a Medical Power of Attorney these documents require specific language to make them enforceable. Further, agents who are appointed under these documents must be selected with care because of the significant power an agent is given. Finally, certain assets such as Retirement accounts require very specific language to allow an agent to access them. Sitting down with an attorney and discussing your individual situation can help make sure you select the right agent and provide them with the right powers and guidance to ensure that your affairs are managed in accordance with you wishes.

Ultimately, with all estate planning document s the law is ever changing, the requirements to make documents enforceable can sometimes change drastically, the desires of banks, doctors and other third parties who have to follow the directions of these documents changes over time. A qualified estate planning attorney will keep up to date on the law and policies that effect you individual situation to make sure that the documents you have protect your assets, ensure you the appropriate medical care and distribute your estate in accordance with your wishes. Your attorney will make sure your goals are achieved so you can relax and focus on spending quality time with your family rather than worrying about what if.

Please feel free to contact our office for a free consultation and let us help you achieve you goals and provide for your family.

Written By: Scott Nichol

Email: scott@nicholdoeringpllc.com