Why Gay Marriage Matters

Here in Virginia same sex relationships are afforded ZERO legal recognition.  And marriages performed in gay friendly states are likewise not recognized whatsoever. Some readers may think I am exaggerating when I say that Virginia law recognizes my ownership of my dog than it does my relationship with the boyfriend, but it is the honest truth of the situation.  And it's simply not right and it surely does not reflect equality under the civil laws.  To make matters even worse, some in the Republican Party of Virginia - including GOP candidate for governor, Ken Cuccinelli - want to re-institute the state's sodomy law which has now been twice ruled unconstitutional.  To describe Virginia as a hostile environment for LGBT citizens is an understatement.

Yes, same sex couples can sign Wills, Trusts, powers of attorney and endeavor to construct for themselves some of the legal safeguards of marriage, but they are not the same and, worse yet, they can be subjected to drawn out legal challenges by hostile family members of a deceased partner - especially when there is money to be gained.  As an attorney I all too often see situations where "accepting" family members are only too willing to turn on a grieving partner and try to gain the inheritance intended for the partner.  

A new film based on a true story of just what can happen was awarded a big honor at the Tribeca Film Festival  by winning the audience’s nonfiction award for a documentary film.  A piece in the Los Angeles Times looks at the film and the award.  Here are highlights followed by a movie trailer:

On the documentary side, "Bridegroom," Linda Bloodworth-Thomason’s character-driven examination of gay rights and  the same-sex marriage issue, won the audience’s nonfiction award.

“Bridgegroom,” which raised more than $300,000 of its production budget via Kickstarter, explores the real-life story of Shane Bitney Crone and Tom Bridegroom, a same-sex couple who had planned to marry in California when Bridegroom was tragically killed in a roof accident. Bitney Crone is then prohibited from attending Bridegroom’s funeral by the late man’s family. A subsequent video tribute to Bridegroom from Bitney Crone became a viral sensation. The film does not yet have distribution plans.

 



 Hollywood Reporter says this about the movie and it's true life story line:

It’s guaranteed that there won’t be a dry eye in any theater showing Linda Bloodworth Thomason’s deeply moving documentary about the plight of Shane Bitney Crone, who lost his lover in a tragic accident and was prevented by the deceased’s family from even attending the funeral. The film - -inspired by a 2012 YouTube video posted by Crone that went viral -- showcases the personal side of the story while also putting a spotlight on the hot-button issue of gay marriage. Screened at the Tribeca Film Festival, where it was introduced by no less a personage than President Clinton, Bridegroom is destined for a long life on the festival circuit and beyond.

It’s Tom’s accidental death from a fall off a rooftop that fuels the film’s principal dramatic element, as Shane is prevented from seeing his dying lover in the hospital, only finally gaining entry thanks to the kindness of his nurses. Despite his previously warm relationship with Tom’s religious mother, he finds himself completely ostracized by the family, his presence in Tom’s life virtually erased.

The story is told in compelling sympathetic fashion by Designing Woman creator Thomason, with extensive comments by various friends and relatives of the couple as well as Shane himself, who movingly and articulately expresses his profound grief. Such moments as when he describes making his final farewell to his dead lover via the secret code of tapping that they used to express their love in public are simply shattering.

What's even more disturbing is knowing that stories like this happen simply so that the "godly Christian" set can feel good about themselves for punishing and stigmatizing "sinners" like us gays.   It is they, not us who commit the greater sin.  They are self-centered, hate filled people who deserve no deference and certainly no respect.

Another Federal Judge Strikes Down DOMA

More bad news today for the Christofascists and their boot licking political prostitutes in the Congressional GOP.   Yet another federal court decision was handed down holding that the Section 3 of the federal Defense of Marriage Act is unconstitutional under the equal protection clause of the U.S. Constitution.  This ruling was handed down in the case of Edie Windsor (pictured at right), who was seeking a refund of the federal estate tax paid by the estate of her late wife (unlike heterosexual couples, legally married same sex couples cannot transfer assets tax free to their spouses upon their death).  DOMA has no rational basis for its discrimination against same sex couples other than the improper intertwining of anti-gay religious beliefs into the nation's laws.  Here are highlights from Think Progress on this new ruling against DOMA:

Another federal judge has struck down the Defense of Marriage Act (DOMA), finding the law unconstitutional. 

The victory comes in the case of Edie Windsor, who was seeking a refund of the federal estate tax paid by the estate of her late wife. From the ruling:

The Court declares that section 3 of the Defense of Marriage Act is unconstitutional as applied to the Plaintiff. Plaintiff is awarded judgment in the amount of $353,053.00, plus interest and costs allowed by law.

“It does not follow from the exclusion of one group from federal benefits (same-sex married persons) that another group of people (opposite-sex married couples) will be incentivized to take any action, whether that is marriage or procreations.”

It’s another loss for Paul Clement and House Speaker John Boehner’s (R-OH) Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”), who had claimed that her homosexuality was a “choice.”

Windsor’s attorneys had argued that “DOMA violates the Equal Protection principles of the U.S. Constitution because it recognizes existing marriages of heterosexual couples, but not of same-sex couples, despite the fact that New York State treats all marriages the same.”

 

It Doesn't Have to Happen to You - LGBT Estate Planning

The You Tube video "It Could Happen to You" set out above has gone viral with well over two million views.  The video shows exactly what can happen when same sex couples fail to take proper steps to ensure that family bigotry and/or hostile cultural settings do not lead to horrific and cold hearted results.  Here in Virginia - a decidedly anti-gay state - there are some things same-sex couples can and should do to provide for some of the legal protection automatically conferred on heterosexual married couples.  The story set forth in the video does not have to happen.  One can even specify who will plan one's funeral and make all related decisions.  Unfortunately, far too many LGBT couples fail to take these relatively simple steps to avoid the adverse and/or unexpected effects of current Virginia law, in particular the “Marshall-Newman Amendment” to the Virginia Constitution enacted in November, 2006.

NECESSARY DOCUMENTS AND STEPS:  There are some basic documents and steps that every unmarried couple and every same-sex couple in a committed relationship should have prepared and duly signed.  These documents will stand up under the Marshall Newman Amendment and include:

            Will - A will specifies how you wish your property to be distributed upon your death. In a will, you designate the person you wish to handle your estate -- your partner or another individual. Without one, your partner receives absolutely nothing.  Pursuant to § 64.1-46 of the Virginia Code, anyone who is over the age of 18 years and not mentally incompetent may make a will and thereby dispose of any estate to which he shall be entitled, at his death, including any estate, right or interest to which the testator may be entitled at his death, notwithstanding he may become so entitled subsequently to the execution of the will. Inasmuch as neither § 64.1-46 or other provisions of the Virginia Code restrict permitted devisees to spouses or blood relatives, both unmarried heterosexual couples and same-sex couples may make wills leaving assets to their partners.

            Trust - A properly established and funded trust avoids publicly probating assets owned by the trust at the time of one’s death and is more difficult to challenge in court than a will.  In addition, a trust can provide beneficiaries with creditor protection in certain circumstances.  Properly structured, a trust can provide support for one’s surviving partner for the remainder of his or her life, with the remainder to pass to other relatives and designated beneficiaries, bypassing potential taxes associated with the surviving partner's estate.  Chapter 4, Title 26 of the Virginia Code governing the appointment, qualification, resignation, removal of fiduciaries, including trustees, contains no provision restricting permitted trustees or trust beneficiaries to spouses or blood relatives.   Therefore, both unmarried heterosexual couples and same-sex couples may create trusts naming their partners as beneficiaries in a manner that does not purport “to bestow the privileges or obligations of marriage.”

            * Health Care Power of Attorney - A health care or medical power of attorney allows one’s partner regardless of gender to make medical decisions on your behalf in the event you are not able to do so due to incompetency or other incapacity.   Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact

            * Advanced Medical Directive - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.  Advance medical directives must be signed by the declarant in the presence of two subscribing witnesses who cannot be the spouse or blood relatives of the declarant. 

            There is no statutory restriction that one’s agent must be a spouse or blood relative.  Rather, §54.1-2982 of the Virginia Code provides that under any such advance medical directive, an agent means “an adult appointed by the declarant under an advance directive, executed or made in accordance with the provisions of § 54.1-2983, to make health care decisions for him. . ." Such authority includes visitation rights, provided the advance directive makes express provisions for visitation.  Therefore, properly drafted and executed advanced medical directives by a same-sex couple should not be deemed to “bestow a privileges or obligations of marriage.”

* Legislation passed in 2007 authorized a central statewide repository where these documents can be filed and accessed by healthcare providers.  The system is still not yet operational.

            General/Business Power of Attorney - This form of power of attorney allows a member of either an unmarried couple or a same-sex couple to authorize their partner to handle their financial affairs in the event of disability or unavailability.

Child Care Power of Attorney for Non-Adopted Children - Another common difficulty is that non-adoptive, non-birth parents are NOT considered to be the parent or guardian of the children of the birth parent in the relationship.  Thus, they are legally “strangers” and have no right to be involved in health care, educational, or other decisions for their partner’s children.  In this context, it is critical that the birth parent execute a child care power of attorney in favor of their partner so that the non-birth parent partner authorized to communicate with make decisions with school personnel, doctors, dentists and other providers.

            Title on Deeds and Accounts - How title to property is held can effect both future  ownership and tax liability. Joint tenancy with rights of survivorship, for example, will ensure that the surviving partner will have full ownership upon the death of the deceased partner and avoid ownership disputes with surviving blood relatives.  However, it can create certain negative estate tax treatment depending on the size of one’s taxable estate. Historically, deeds creating a tenancy by the entirety have been reserved for husband and wife couples.   In light of the Virginia Affirmation of Marriage Act cited above, such a deed conveying title to a same-sex couple even though validly married in another state such as Massachusetts would not be effective in Virginia.

BENEFICIARY DESIGNATIONS: Most securities and retirement accounts provide for the designation of beneficiaries.  These should be reviewed periodically to ensure that desired goals are achieved and also should include the designation of contingent beneficiaries to ensure the desired parties are named in the event of the death of the principal beneficiary. 

LIFE INSURANCE: Properly utilized, life insurance can provide funding for payment of estate taxes, outstanding mortgages, charitable trusts, education of minors, and other functions.

SPECIAL NEEDS TRUST: If a loved one is disabled, you will want to consider establishing a Special Needs Trust for that individual. A Special Needs Trust can be created by the donor during his or her life or it can be created by one’s Last Will and Testament.  The purpose of such a trust is to enable the donor to provide for the continuing care of a disabled partner or child so that the loved one will have access to the trust assets for purposes other than those provided by public benefits programs. Of equal importance, the beneficiary will not lose eligibility for needs-based benefits, such as Supplemental Security Income ("SSI"), Medicaid, or low-income housing.

NOTE: This article contains a general discussion of estate planning matters which vary greatly in asset structuring needs and potential tax liability based on the particular facts and circumstances of individuals and the nature of their assets.  Therefore, it should not be relied upon as a substitute for individualized legal advice addressing one’s particular situation.

Why Marriage Equality Desperately Matters

Back when Virginia was considering the "Marshall Newman Amendment" which, when passed in November 2006 wrote discrimination into Virginia's constitution, I participated in several debates against a proponent of the amendment who blithely claimed that with proper wills, powers of attorney, etc., same sex couples were adequately protected. I, of course said that his argument was BS and that equality under the law mean equality in every regard, including marriage. Now, a story out of California forcefully demonstrates yet again why only full marriage equality will afford true equality. All it takes is one reactionary judge who - like so many, including Justice Antonin Scalia - cannot leave his religious extremism at the courthouse door and one's carefully planned legal paperwork can be rendered meaningless. My fellow Bilerico Project contributor, Kate Kendall, has the horrible facts of the situation that strongly argue that the judge and county officials involved need to be immediately fired. The situation would also have likely had a very different ending had Harold and Clay been legally married. The situation is an outrage and demonstrates the fruits of constant Christianist denigration of gay lives and relationships. I'm sure modern day Pharisees like Maggie Gallagher are smiling at their handiwork in this sad case. Here are some highlights from the National Center for Lesbian Rights:

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Clay and his partner of 20 years, Harold, lived in California. Clay and Harold made diligent efforts to protect their legal rights, and had their legal paperwork in place—wills, powers of attorney, and medical directives, all naming each other. Harold was 88 years old and in frail medical condition, but still living at home with Clay, 77, who was in good health.
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One evening, Harold fell down the front steps of their home and was taken to the hospital. Based on their medical directives alone, Clay should have been consulted in Harold’s care from the first moment. Tragically, county and health care workers instead refused to allow Clay to see Harold in the hospital. The county then ultimately went one step further by isolating the couple from each other, placing the men in separate nursing homes.
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Ignoring Clay’s significant role in Harold’s life, the county continued to treat Harold like he had no family and went to court seeking the power to make financial decisions on his behalf. Outrageously, the county represented to the judge that Clay was merely Harold’s “roommate.” The court denied their efforts, but did grant the county limited access to one of Harold’s bank accounts to pay for his care.
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without determining the value of Clay and Harold’s possessions accumulated over the course of their 20 years together or making any effort to determine which items belonged to whom, the county took everything Harold and Clay owned and auctioned off all of their belongings. Adding further insult to grave injury, the county removed Clay from his home and confined him to a nursing home against his will. The county workers then terminated Clay and Harold's lease and surrendered the home they had shared for many years to the landlord.
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Three months after he was hospitalized, Harold died in the nursing home. Because of the county’s actions, Clay missed the final months he should have had with his partner of 20 years. Compounding this tragedy, Clay has literally nothing left of the home he had shared with Harold or the life he was living up until the day that Harold fell, because he has been unable to recover any of his property.
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With the help of a dedicated and persistent court-appointed attorney, Anne Dennis of Santa Rosa, Clay was finally released from the nursing home. Ms. Dennis, along with Stephen O'Neill and Margaret Flynn of Tarkington, O'Neill, Barrack & Chong, now represent Clay in a lawsuit against the county, the auction company, and the nursing home, with technical assistance from NCLR. A trial date has been set for July 16, 2010 in the Superior Court for the County of Sonoma.
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It is sad beyond words that in the minds of many religious zealots gays and same sex couples are viewed as less than fully human. The irony is that I suspect that it will be the "Godly Christians" who burn in Hell for their misdeeds to their fellow man, not the gays for loving someone of the same gender.

'A Single Man' Highlights Gay and Family Issues

While the movie "A Single Man" directed by designer Tom Ford will likely not be shown in the areas of the country where it is perhaps the most needed, one can nonetheless hope that the movie may open at least some minds as to the common humanity of LGBT Americans and even provoke some thoughts and conversations about the inequity of denying same sex couple marriage rights - particularly those who have been in decades long relationships. Admitted, the goal of the Christianists and homophobes is to keep LGBT individuals viewed as "other" or even sub-human, but movies like this one as did Brokeback Mountain in a different sense may make it more difficult for our enemies to maintain the anti-gay stereotypes they work so hard to promote. As the immediately prior post discusses, the homophobes are in fact very sick people. Here are some highlights from a CNN commentary on the new movie:

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Ford's project is more than just a stylish and thought-provoking film about the crippling loneliness a gay man feels when his partner dies in a tragic accident. It is a timely conversation piece about same-sex rights.
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For the gay community the story of a closeted college professor mourning the death of his long-time lover reflects the history of the struggle to be open about homosexuality in the 1960s. The same struggle continues today as the gay community fights for equal rights and laws allowing same-sex marriage.
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"We're used to movies like 'Brokeback Mountain' that deal with the difficulties of being gay, but this is about the difficulties of being human viewed from the perspective of a gay man," said Aaron Hicklin, the editor-in-chief of Out, the highest-circulation gay monthly. "That's not as common as it should be. As we continue to make the case for full equality, movies like this help balance the negative and stereotypical views of homosexuality that are out there."
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In one pivotal scene in the film, George learns his long-time partner Jim, played by Matthew Goode, has died in a car crash and George is not invited to the funeral, which is limited to family only. Jim's family even keeps the couple's dog. George and Jim had been together for 16 years, but in 1962 such relationships were "invisible," which only makes the grieving process more difficult for George. "Though this movie is set in the 1960s, the same thing can potentially happen to gays and lesbians now," Conrad said.
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"Through Colin Firth's character we come to truly appreciate the tremendous power of love, and of redemption. I can't imagine anyone, whatever their sexual orientation, failing to connect with his humanity," Hicklin said. "The silence and the invisibility the film is portraying was in part why Americans didn't understand the need for freedom to marry when the first cases for the freedom to marry began by 1971," explains Evan Wolfson, the Executive Director of the organization Freedom to Marry and author of "Why Marriage Matters."
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"I think the film shows the price people pay for silence and it shows the common humanity and invites people to ask themselves: How would I feel if I couldn't acknowledge the love of my life?"
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Sadly, situations like that depicted in the movie do still occur - as I know from the calls I receive from the survivors of same sex couples who are being suddenly treated as a stranger by their deceased partners family and are often thrown out of their own homes. It underscores the need for wills, trusts, and medical powers of attorney so that George's sad story does not repeat yet again.

The High Price of Being a Gay Couple

Gay activists see the issue of same sex marriage as an issue of full civil equality as citizens and similar treatment as other life partnered couples. The Christianists, on the other hand see the issue of one where they expect all other citizens to live their lives according to Christianist religious views and to Hell with the freedom of religion rights of others. And because gays do not conform to the Christianist religious belief system, the Christianist goal is to have us penalized and punished in as many ways as possible so as to signal to the world our inferiority. In an article today the New York Times confirms that religious based discrimination against same sex couples is very costly from a financial perspective given the number of rights and benefits LGBT couples are denied since they cannot legally marry in most states and because the federal government refuses to recognize their marriages even in states where same sex marriage is legal. The Times analysis focuses only on the financial cost of legal inequality and does not venture into the emotional and psychological cost to gays who are faced with daily discrimination and bigotry because of religious based discrimination written into both state and federal laws. Here are some story highlights:

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Much of the debate over legalizing gay marriage has focused on God and Scripture, the Constitution and equal protection. But we see the world through the prism of money. And for years, we’ve heard from gay couples about all the extra health, legal and other costs they bear. So we set out to determine what they were and to come up with a round number — a couple’s lifetime cost of being gay.

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It was much more complicated than we initially imagined, and that’s probably why we’ve never seen similar efforts. We looked at benefits that routinely go to married heterosexual couples but not to gay couples, like certain Social Security payments. We plotted out the cost of health insurance for couples whose employers don’t offer it to domestic partners.

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Here is what we came up with. In our worst case, the couple’s lifetime cost of being gay was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs.

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These numbers will vary, depending on a couple’s income and circumstance. Gay couples earning, say, $80,000, could have health insurance costs similar to our hypothetical higher-earning couple, but they might well owe more in income taxes than their heterosexual counterparts. For wealthy couples with a lot of assets, on the other hand, the cost of being gay could easily spiral into the millions.

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Heterosexual married couples can transfer an unlimited amount of assets to each other during their lives and at death without paying estate taxes. Everyone else, including married same-sex couples, must pay federal estate taxes on amounts that exceed the 2009 exemption of $3.5 million. Many states also levy their own estate or inheritance taxes, though same-sex couples may be shielded from those in states that recognize their unions. Our couple lived in New York, where the estate tax exemption is $1 million. And though New York recognizes marriages performed elsewhere, that recognition does not extend to state income or estate taxes.

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Even married same-sex couples are encouraged to create a number of documents that try to replicate the protections and rights of heterosexual marriage because their unions are not universally recognized. In the worst case, our gay couple spent $5,500 more than their heterosexual counterparts on their additional paperwork. That included a revocable living trust, which is more difficult to contest than a will, and what is known as a pour-over will, which ensured that anything left out of the trust would be included. They also each set up financial powers of attorney, health care proxies, living wills and a domestic partnership agreement.

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Again, the ONLY true justification behind this disparate treatment of same sex couples is religious based discrimination. Because we do not adhere to Christianist religious views, we pay a price literally for merely being who God made us to be. Clearly, under any literally reading of the U.S. Constitution such religious based discrimination should be illegal.

Equality Virginia's 5th Annual Activist Conference

Equality Virginia is hosting its 5th Annual Activist Conference in Richmond, Virginia, on Saturday, July 12, 2008 from 9:30 am to 5:00pm at the Virginia Commonwealth Unniversity Student Commons. 907 Floyd Ave Richmond, VA 23284. Registration is on a sliding scale of $5-$70. Suggested registration is $35 (includes lunch). Those who cannot afford $35 may pay less. EV asks that those who can afford to pay more do so in order to offset the cost of participation and ensure that financial cost will not be a barrier to anyone who would like to attend. More information can be found here. I will be speaking on the following topics:

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Legal issues in Virginia facing non-traditional families. Learn what you can do to protect your family regarding child custody, same-sex partner inheritance, and more. A Q&A will follow the panel presentation.

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There will be a number of other workshops that will be informative and worthwhile to attend. I hope readers in Virginia can attende the event.

Why Gays Need Proper Estate Planning Documents

Among the types of legal work that I do is preparing wills, trusts, medical powers of attorney, etc., for gay and lesbian couples. Obviously, in light of Virginia's "Marriage Amendment" it is crucial that LGBT couples have proper estate planning documentation in place. Equally important is the need for such documentation to be in proper form for admission into probate. Should a will not be in proper form, the surviving partner will be at extreme risk that a hostile family member will be able to qualify as the administrator of the estate - the surviving gay/lesbian partner would likely NOT be able to qualify ahead of a blood relative - and then deprive the surviving partner of all property not titled in that partner's name.

What brought this issue to mind was a telephone call I received yesterday when I happened to be at the office dropping off some stuff. The caller was seeking a Virginia attorney to assist a gay couple who have been together for over 20 years and one partner is ill and not expected to live out the week. To make this sad situation worse, the mother of the dying partner apparently never accepted her son's sexual orientation OR his partner. As a result, if the will that was prepared by someone the caller thought may not have been all that competent is not in proper form for filing with the Probate Division of the Circuit Court, the hostile mother could wreak havoc on the surviving partner. Frequently, I hear of people that buy will kits online or at the local office supply store and have wills prepared of questionable validity. Such kits/forms may or may not have been drafted to the testator's home state's will requirements. The legal requirements for wills can and do vary from state to state, so by buying online or buying simple printed forms, one may in fact be purchasing materials that apply to a different state. My advice is NEVER EVER use these materials!!!

Virginia (and some other states) have statutory provisions that provide for a mechanism to make the will "self-proved" which avoids the need to have witnesses - who may have died, moved or otherwise be unavailable - appear at the court to get the will admitted by the Court. In Virginia, this statutory provision is § 64.1-87.1, Code of Virginia of 1950, as amended. EVERY will that I prepare meets these self proving requirements. I can only hope for the sake of the survivor of the gay couple referenced above that the dying partner's will is in proper form. Proper wills are not that expensive and can avoid a complete catastrophe for LGBT couples. If need be, ask your attorney for a payment plan - I would certainly work with a couple rather than have them at serious risk. Whatever you do, DO NOT PUT OFF GETTING PROPER WILLS PREPARED AND PROPERLY SIGNED.

Enforceability of Sam Sex Estate Planning Documents in Virginia

Frequently same sex couples in Virginia as me whether or not their wills and similar estate planning documents will be enforceable in Virginia in light of the “Marriage Amendment” to the Virginia Constitution enacted in November, 2006 (which applies equally to ALL unmarried couples, gay or straight). Here is my analysis of how these documents hold up to potential challenges. First, historically naming devisees, attorneys in fact, and trust beneficiaries has NEVER been restricted to spouses or blood relatives. Therefore, anti-gay "marriage" provisions do not reach these types of agreements, although the existence of such provisions may increase the chances that hostile relatives might try to challenge a gay couple’s estate planning decisions. Second, it is highly unlikely that a court – especially an appellate court - would overturn properly drawn and executed documents since it would cause a cataclysm legally and put MANY trusts, wills and other documents at risk. In addition, certain statutory provisions do not bar same sex estate planning documents:

WILLS: Neither § 64.1-46 or other provisions of the Virginia Code restrict permitted devisees to spouses or blood relatives; therefore, both unmarried heterosexual couples and same-sex couples may make wills leaving assets to their partners.

TRUSTS: Chapter 4, Title 26 of the Virginia Code governing the appointment, qualification, resignation, removal of fiduciaries, including trustees, contains no provision restricting permitted trustees or trust beneficiaries to spouses or blood relatives. Therefore, both unmarried heterosexual couples and same-sex couples may create trusts naming their partners as beneficiaries in a manner that does not purport “to bestow the privileges or obligations of marriage.”

ADVANCED MEDICAL DIRECTIVE - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.

HEALTH CARE POWER OF ATTORNEY – Recently enacted legislation in Virginia has authorized individuals to select any adult for hospital visitation and health care decisions. Therefore, a health care or medical power of attorney allows one’s partner regardless of gender to make medical decisions on your behalf in the event you are not able to do so due to incompetence or other incapacity. Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact.

CANONS OF JUDICIAL CONDUCT: Should a judge ignore these legal realities, there is one other generally unknown protection available to same sex couples. This is found under Canon 3.B.5 of the Canons of Judicial Conduct for the Commonwealth of Virginia, which provides in relevant part:

“A judge “shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. . . .” (Emphasis supplied)

This is the only provision under current Virginia law where sexual orientation is a specifically a protected class. A judge that fails to abide by this non-discrimination directive should recuse himself/herself from the case. Failure to do so may subject a judge to possible disciplinary action.

Experienced Legal Services to the LGBT Community

Other bloggers from time to time hawk their products, so I figured I'd do a marketing post for the type of legal work that I can provide to members of the LGBT community who want an experienced, openly gay lawyer. Therefore, here's a run down of what types of work my practice includes. Anyone interested in legal services can e-mail me directly or via the firm website at http://www.hamarlaw.com/. Here's the summary of services:

Residential Real Estate: The firm routinely provides residential real estate services that have included:
· settlement services for hundreds of residential real estate transactions
· document preparation involved, but not been limited to, the preparation of documents ranging from residential purchase agreements, mortgage loan packages, deeds and deeds of trust, leases
· lease preparation and landlord/tenant advise
· boundary line agreements and assorted easement agreements
· document preparation services to local title insurance settlement agencies.

Commercial Real Estate: In the area of commercial real estate transactions, the firm handles:
· large numbers of commercial loan transactions secured by real estate holdings
· restructuring problem loans
· commercial real estate acquisitions and sales, ranging in size from single convenience stores to multiple television stations
· condominium law matters
· tax-exempt financing for the acquisition and construction of manufacturing facilities, solid waste disposal facilities
· tax-exempt and low income housing tax credit financing for multifamily housing facilities and elderly housing projects.

Corporate and Business Transactions: The firm has 30 years of experience in performing legal services for banking, commercial and corporate practice transactions, and has a recognized specialty practice in taxable and tax-exempt bond finance work. Among the areas where clients are provided experienced assistance are:
· Formation and administration of corporations and limited liability companies
· General and limited partnership formation and administration
· Business acquisitions and sales, including stock sales and asset sales
· Commercial real estate transactions, including acreage acquisition and subdivision matters
· Complex business finance transactions
· Low income housing tax credit financing under Section 42 IRC
· Tax exempt bond finance for manufacturing, air cargo and qualified housing projects

Estate Planning and Non-Traditional Family Law: The likewise has experience in assisting clients in preparing estate planning and related documents. In light of Virginia's "Marriage Amendment," there are some basic documents and steps that every unmarried couple, same-sex couple or not, should have prepared and duly signed. These include, but are not limited to:
· Wills - A will specifies how you wish your property to be distributed upon your death. In a will, you designate the person you wish to handle your estate -- your spouse, partner or another individual.
· Trust Agreements - A properly established and funded trust avoids publicly probating assets owned by the trust at the time of one’s death and is more difficult to challenge in court than a will. In addition, a trust can provide beneficiaries with creditor protection in certain circumstances.
· Medical Power of Attorney - A medical power of attorney allows one’s spouse, partner or other party to make medical decisions on one’s behalf in the event one is not able to do so due to in-competency or other incapacity. Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact.
· Advanced Medical Directive - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.
· General/Business Power of Attorney - This form of power of attorney allows a member of either an unmarried couple or a same-sex couple to authorize their partner to handle their financial affairs in the event of disability or unavailability.

Firm experience in providing legal services concerning unmarried and gay relationship issues, also includes:
· property co-ownership and/or co-tenancy agreements
· equity sharing agreements
· the formation of contract based domestic partnerships and dissolution of the same
· parenting agreements and powers of attorney concerning non-adoptive minor children.