Why Estate Planning Documents Are Crucial

At dinner with friends the other night our hosts and the boyfriend recounted the horror story of a same sex couple where one became very ill and ultimately died. Most of the couple’s assets were in the name of the deceased partner and the surviving partner lost almost everything, including his home and a business that he had helped build. In fact, he had to prove in court which assets he had purchased in his own right in order to have them not incorporated into the deceased partner's estate that went only to his blood relatives. These kinds of nightmares happen with all to frequent regularity. Meanwhile, they CAN be avoided through proper estate planning documents. I have set out below an article I put together on this topic for my LGBT clients (NOTE: While the article deals with Virginia law, the concepts are generally applicable in other states):

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ESSENTIAL LEGAL DOCUMENTS FOR LGBT COUPLES
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There are some things same-sex couples can and should do to provide for some of the legal protection automatically conferred on married couples. Unfortunately, far too many such couples fail to take the relatively simple steps to avoid the adverse and/or unexpected effects of current law.
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NECESSARY DOCUMENTS AND STEPS: There are some basic documents and steps that every unmarried couple and every same-sex couple should have prepared and duly signed. These include:
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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.
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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.”
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Medical/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
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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.
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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.”
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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.
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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.
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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.
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LIFE INSURANCE: Properly utilized, life insurance can provide funding for payment of estate taxes, outstanding mortgages, charitable trusts, education of minors, and other functions.
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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.

Christianists vs.Patient Rights

One would think that if an individual had religious beliefs - no matter how whacked out and self-absorbed - that they would simply change jobs if their legitimate, legal work duties required them to undertake actions that went counter to their alleged Medieval religious beliefs. But no, not the Christianists. They are attempting to have the Chimperator's anti-science, anti-rights of others cretin regime promulgate new rules that would punish health care providers that do not allow the religious fanatic set to disregard work requirements. These folks act more like the Taliban every day even as they lie, cheat, and shake down the unwary for money. As I had said many times before, with the Christianists, it's ALL about them. F*ck everyone else's rights. Their rights take priority over all others. They are, in my view, a shamelessly self-centered and disingenuous group who give Christianity an ever increasingly bad name. I continue to believe that unrestrained Christian fundamentalism is a clear and present danger to the nation and the individual rights of other citizens. Not surprisingly CWA and FRC support the regulations. Here are highlights from the Washington Post about the latest delusional Chimperator backed efforts to subvert the rights of most Americans and their doctors to make health care decisions:

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A Bush administration proposal aimed at protecting health-care workers who object to abortion, and to birth-control methods they consider tantamount to abortion, has escalated a bitter debate over the balance between religious freedom and patients' rights.

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The Department of Health and Human Services is reviewing a draft regulation that would deny federal funding to any hospital, clinic, health plan or other entity that does not accommodate employees who want to opt out of participating in care that runs counter to their personal convictions, including providing birth-control pills, IUDs and the Plan B emergency contraceptive.

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There is also deep concern that the rule could have far-reaching, but less obvious, implications. Because of its wide scope and because it would -- apparently for the first time -- define abortion in a federal regulation as anything that affects a fertilized egg, the regulation could raise questions about a broad spectrum of scientific research and care, critics say.

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"This is causing a lot of distress," said one NIH researcher who spoke on the condition of anonymity to describe internal discussions. "It's a redefinition of abortion that does not match any of the current medical definitions. It's ideologically based and not based on science and could interfere with the development of many new therapies to treat diseases." Since a copy of the document leaked earlier this month, outside advocates and scientists have voiced growing alarm that the regulation could inhibit research in areas including stem cells, infertility and even such unrelated fields as cancer.

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The most controversial section defines abortion as "any of the various procedures -- including the prescription, dispensing and administration of any drug or the performance of any procedure or any other action -- that results in the termination of life of a human being in utero between conception and natural birth, whether before or after implantation." That definition would include most forms of hormonal birth control and the IUD, which most major medical groups believe do not constitute abortion because they primarily affect ovulation or fertilization and not an embryo once it has implanted in the womb.

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Cecile Richards of the Planned Parenthood Federation of America said, "At a time when access to health care is at an all-time low, the idea that the Bush administration would be creating more barriers is frankly incredible." The regulation could trump dozens of state laws that require health plans to cover birth control, pharmacists to fill prescriptions for contraceptives, and hospitals to offer emergency contraception to women who have been raped, critics said.

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Others said the rule could have additional implications, including justifying discrimination against gays, single women or others seeking health care.

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Can't we round these nutcases up and ship them to Afghanistan and Iran instead? They certainly share the same Taliban-like mindset and perhaps the two groups would exterminate each other.