Terri was diagnosed as being in a persistent vegetative state after suffering cardiac arrest in 1990.  Her family battled in court for several years about her health care and, ultimately, whether she could be disconnected from life support.

According to an AP story, most Americans still avoid planning for the end of their lives.  This is ironic, since we are a people who plan everything:  our schedules, our careers, our vacations, our retirements.   When we don’t plan for end-of-life treatment and medical decisions, other people can take over at the very time when we are most vulnerable and in need of understanding.  A couple of simple yet critical legal documents – power of attorney for health care and living will -can communicate your wishes about the care and treatment you want to receive if you reach the point where you can no longer speak for yourself.

Engelhard, a 10-year veteran of the Missouri State Highway Patrol, was killed last December after getting out of his patrol car to place flares at the scene of a traffic accident.  Under Missouri state pension rules, if a trooper dies in the line of duty, his or her spouse is eligible for lifetime survivor benefits.   For Engelhard, that would have been more than $28,000 a year.

Missouri pension law is clear about who is a spouse.  In 2004 Missouri voters approved a constitutional amendment banning same-sex marriage.  Neither the state Highway Patrol pension system nor Missouri law recognizes domestic partners.

Although the unmarried partner of a heterosexual trooper would also not be eligible for survivor pension benefits, that couple would have had the option of getting married.   An option not available to Engelhard and Glossip.

Illinois, a bill, SB 2822, has recently been introduced that would amend the state pension code to allow a designated domestic partner to qualify as a surviving spouse for purposes of survivor and death benefits.  The bill defines a domestic partner as a person of the same gender as the unmarried pension participant who:

• is at least 18 years old
• is involved with the participant in a long-term relationship
• has resided witht he participant at the same address for at least 12 months
• is not a close blood relative of the participant
• is not married to another person
• has an exclusive mutual commitment to the participant in which they agree to be jointly responsible for each other’s common welfare and to share financial obligations.

If you have a health care power of attorney, you will likely not need Tool # 7 unless you want to designate someone other than your health care agent to have authority to dispose of your remains.  However, the Appointment of Agent to Control Disposition of Remains must be coordinated with the health care power of attorney to avoid confusion or conflict.

The Disposition of Remains Act provides that a person may provide written directions via the following:

• a will;
• a prepaid funeral or burial contract;
• a power of attorney that meets the criteria of the Illinois Power of Attorney for Health Care;
• a cremation authorization that complies with the Illinois Crematory Regulation Act; or
• a written document that satisfies the provisions of Sections 10 and 15 of the Disposition of Remains Act and that is signed by the person and is notarized.  (that is, the “Appointment of Agent to Control Disposition of Remains.”)

The Act does not prioritize which of the above takes precedence, but the Appointment of Agent to Control Disposition of Remains does state that any prior appointment of a person to control disposition of remains is revoked.   755 ILCS 65/40(a).  It also provides that any disputes are to be resolved by a court.

As I’ve discussed many times -

• discuss;
• plan;  then -
• take action

to ensure that what you want and what you intend for yourself and your loved ones come to pass.

Why own as joint tenants rather than just leaving the house to your partner in your will?  Even if you die with a will, your relatives (”legal heirs”) may go to court to challenge the will.  This has happened all too often to LGBT people.  Ownership in joint tenancy means that the surviving joint tenant immediately becomes the owner of the home when you die.  This is called a Right of Survivorship.

The main advantage of joint tenancy is the automatic transfer of ownership when one of the joint tenants dies.  A home in joint tenancy does not have to go through the probate estate of the person who died.

A word of caution:  property held in joint tenancy can be affected by several types of taxes, including federal and state income taxes, estate taxes and gift taxes.  Tax laws change often.  Carefully consider tax laws when deciding how to title your home or other property.

As always, consult an attorney or financial planner.

For LGBT persons, a will is not optional.   Dying without a will guarantees that your property will be automatically distributed to your legal heirs, as defined by the law of Illinois, if you’re an Illinois resident, or your state.  The Illinois statute is here.

Who are legal heirs?

• They are your family of origin – children, parents, brothers and sisters.  If you have none, then your closest relatives are your legal heirs.
• A same-sex partner or spouse is not a legal heir (with the exception of a few states where the marriage, civil union or domestic partnership laws recognize the right of a same-sex partner to inherit.)
• No matter how long you’ve been with your partner, no matter what your relationship is with your family of origin – if you die without a will, your property will go to your legal heirs as defined by the law of the state in which you live.

A last will and testament can accomplish several important things, including:

• naming your partner or a close friend as guardian of your minor children;
• spelling out your burial wishes;
• clarifying your intention to provide for your same-sex partner or close friend or a charity;
• naming your partner as executor of your estate.

If you anticipate a will challenge or hostile family members, you need to take even greater precautions in drafting your will.

It is far less expensive, financially and emotionally, to plan now to make sure that your property goes to the people or charities you choose.  Remember, every state has different legal rules for creating a valid will.  Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.   Have an experienced, knowledgeable attorney who is familiar with the laws in your state and the issues faced by LGBT persons help you draft your will and life planning documents.

It’s easy to forget whom we’ve named as beneficiary of life insurance policies, especially when it’s been years since we took out the policy.  Who is named on your policies?   Be sure that it’s the person or persons you want to provide for if you die unexpectedly.  If no one is named, the proceeds will likely go into your estate and be distributed through the probate process.  This result may or may not be what you wanted.

The same is true for retirement benefits.  Check your plans and accounts to ensure that your beneficiaries are who you want them to be.

Unfortunately, there are many sources of retirement income that are structured to provide benefits based on federally-recognized marriages.  That is, no benefits are available to surviving unmarried partners or persons other than a federally-recognized spouse.  In these cases, life insurance or an annuity may be the best way to replace the safety net that retirement, survivor or accidental death benefits provide.

A Living Will is not a last will and testament.  It is a written statement signed by you that directs your doctor to withhold or withdraw “death delaying procedures” if you have a “terminal condition.”  The Illinois Living Will Act defines “terminal condition” as an incurable or irreversible condition where death is imminent, and the use of death-delaying procedures would only prolong the dying process.

• Living Will or Power of Attorney for Healthcare?

Even though a power of attorney for health care and a Living Will apply to some similar situations, the Living Will is very different.  A Living Will applies only if you have a terminal condition and only to decisions by your doctor to stop or not begin medical treatment that delays the moment of your death.  While a power of attorney for health care permits your agent to stop water and tube feeding, if that is your wish, the Living Will does not permit your doctor to stop water and tube feeding if their withdrawal would cause your death from dehydration or starvation.

A Living Will not only gives your doctor specific instructions, it also gives your loved ones the information they need to advocate for your wishes.  This is all the more important if your loved ones’ authority to carry out your wishes is likely to be questioned, as it could be with same-sex partners or friends who have no legal relationship.  Ask your attorney if your state has an official  form that is used for a Living Will as this will reduce the potential for doubts or challenges.  Here is the form for Illinois.

• Who Should Have a Copy of Your Living Will?

Give an original Living Will document (signed, witnessed, and notarized) to your doctor.  Give copies to your closest loved ones and any other people upon whom you can rely to carry out your wishes, including your agent under your power of attorney for health care.   I also recommend that clients keep a second original in their Life Planning Toolbox.

In Illinois this document is called a power of attorney for health care.  In other states, it may be known as a health care proxy or a medical power of attorney.   You are the “principal.”  The person you appoint to make medical decisions for you is your “agent.”

Practical Tip: Use a small satchel to carry each other’s health care documents as well as copies of financial powers of attorney and certificates of domestic partnership, civil union or marriage.   When the call comes that you’ve been rushed to the hospital, most people will rush to be with you rather than go home for your health care documents.

Remember, unless you have a power of attorney for health care that appoints your partner to make health care decisions, she or he has no authority to do so.    This document can give your partner other rights, including:

• visiting you in the hospital or other facility even when other visiting is restricted;
• hiring and firing medical personnel or moving you to a different facility;
• making decisions about your medical care if you become incapacitated;
• dmaking end-of-life decisions.

In Illinois, the Health Care Power of Attorney is created and authorized by statute in the Illinois Powers of Attorney for Health Care Law, 755 ILCS 45/4-1 et seq.

Think of the what matters most:

• Who will make medical decisions for you if you are unable to do so for yourself?
• Who will make financial decisions for you if you become incapacitated?
• What will happen if your partner and you break up?
• Who will care for your children if something happens to you?
• Who will inherit your belongings when you die?
• Who will see to it that your wishes for your funeral arrangements are carried out?

The reality is that current Illinois law has several barriers between you and the person you may want to be by your side or provided for if something happens to you.    Creating a Life Plan Toolbox now will protect you and the ones you love.

These are the basic tools that should be in your Toolbox:

• Medical Power of Attorney
• Financial Power of Attorney
• A Living Will
• Beneficiary Designations for life insurance policies or retirement plans
• A Will
• Real Estate Ownership Arrangements
• Second-Parent Adoption

I’ll discuss each of these tools in more detail in coming posts.

If you die without a will, the state of Illinois makes these decisions for you.  Property that you own in your own name will go to your legal heirs.  Who are they?  Usually these people are your spouse, your children, or, if you have neither, then your other closest relatives.

Same-sex partners are not considered to be legal heirs or relatives, and so are not legally entitled to inherit each other’s property without a will.  No matter how long you’ve been with your partner, no matter what your relationship is with your relatives, if you die without a will, your partner will not inherit your property.

A will allows you to make sure that your partner inherits your property when you die.