Published on
January 18, 2010 by
Sandra Slaga
You die. You left no will. Maybe you were too busy or just kept putting it off. Maybe you thought you didn’t have enough property or money to justify having a will.
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 Prepackaged forms are often incorrect or out-of-date or just don’t fit your situation.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.
Published on
January 7, 2010 by
Sandra Slaga
- Have you considered life insurance as a way to provide for your loved ones if you die unexpectedly?
- Who do you want to receive the benefits of your life insurance when you die?
- If you have a company pension, 401(k), 403(b), IRA or other retirement assets, who will receive them when you die?
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.
Published on
December 17, 2009 by
Sandra Slaga
- What are your wishes if you are in a persistent vegetative state or have a terminal condition, and death is imminent?
- Do you feel strongly about resuscitation, insertion tubes or other life-sustaining procedures?
- How do you best ensure that your wishes are honored?
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.
Published on
December 9, 2009 by
Sandra Slaga
- You’re critically injured or seriously ill. Or for some other reason you can’t handle your financial matters.
- Do you have a plan in place?
- Who will take care of paying your bills?
- How will your paycheck or other checks get cashed?
In Illinois this document is known as a power of attorney for property. It’s also known as a power of attorney for finances or a durable power of attorney. You are the “principal” and the person you name is the “agent.” The document allows your agent to manage your finances if you can’t. You may cancel the power of attorney at any time and do not have to give a reason; if not, the appointment ends when you die. You decide how much control your agent has over your finances. You can limit the powers of your agent to a specific time frame, or to specific functions. Some of the powers may include:
- using your assets to pay your bills and everyday expenses;
- handling your checking account or other transactions with banks and financial institutions;
- buying or selling real estate or other property;
- operating your small business.
Executing a power of attorney for property can save you and your loved ones the expense and difficulty of a guardianship proceeding in court. It can also prevent your relatives from intervening in your financial affairs if you are incapacitated.
A power of attorney for property can be made effective immediately (a non-springing power of attorney), or you can specify that it go into effect only if you become incapacitated or on a certain date (a “springing” power of attorney.) This is a very personal decision. If you create a “springing” power of attorney, your agent can act only if something that you specify happens, like becoming incapacitated. The disadvantage of this springing power of attorney may be delays in determining whether you are, in fact, incapacitated. A disadvantage of a non-springing power of attorney is that your agent could misuse it while you are still able to make your own decisions. Consult an attorney about what is right for you.
Naming someone as your agent should not be taken lightly. You are giving that person very broad rights to handle your finances, including the ability to empty your checking or savings account with your knowledge. The person you name as your agent should not only be someone who knows how to handle money, but also someone you trust completely.
Published on
December 7, 2009 by
Sandra Slaga
- You are in a serious accident or are sick enough to be hospitalized – you can’t make medical decisions for yourself.
- Who will make decisions when the doctors ask?
- Without the proper legal document, the first relative who arrives at the hospital may be called upon to make critical and personal medical decisions.
- In one case, hospital staff refused to give a woman information about her same-sex partner of 10 years, instead insisting that she give them names of blood relatives for contacts. Things were eventually straightened out, but the proper legal document would have helped avoid the situation in the first place
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.
Published on
December 2, 2009 by
Sandra Slaga
As an LGBT person or a person living with HIV, do you have a Life Plan Toolbox? Would you get into a boat going out on Lake Michigan without a life preserver? Would you let your loved one do so? If your answer is no, then why would you allow you and your loved ones to be without some simple but essential legal protections?
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.
Published on
November 17, 2009 by
Sandra Slaga
Being able to step in and make medical decisions for a seriously ill spouse is unquestioned. Being able to do so for a seriously ill gay partner is not. Unlike married couples, same-sex couples have no legal rights or protection without clear legal documents that spell them out.
To be certain that medical decisions stay in the hands of your partner, you need to prepare the right legal documents. In Illinois these documents are known as a power of attorney for health care and a living will.
Health Care and End-of-Life Issues
Often doctors and other medical providers will look to a family member as defined by state law to make medical decisions for you if you can’t do so for yourself. Most states give that authority to a legally recognized spouse, adult children, parents and other blood relatives. Unless you have a power of attorney for health care that appoints your partner to make these decisions, she or he has no authority to do so. Often times, biological family members can, and do, exclude same-sex partners from decisions. 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.
A living will acts as your written directions to medical personnel about whether you want death-delaying procedures used if you have a terminal condition and are unable to communicate your wishes. This document can provide a clear statement of your wishes in the event that your biological family has different views and/or does not want your partner making decisions.
In Illinois, the Health Care Power of Attorney and the Living Will are created and authorized by statute in the Illinois Powers of Attorney for Health Care Law, 755 ILCS 45/4-1 et seq., and the Illinois Living Will Act, 755 ILCS 35/1 et seq.
Planning. No one can do it for you. Failing to plan could have lasting effects on your future and that of your loved ones. Make the time to create the legal documents that will ensure that you control who makes health care decisions for you when you can’t.
Published on
November 4, 2009 by
Sandra Slaga
Maine voters narrowly decided to repeal a new law allowing same-sex marriage. With almost all precincts reporting, 53 percent voted to overturn the law and 47 percent voted to keep it.
The bill was signed into law in May, but same-sex marriage opponents gathered more than the 55,000 signatures necessary to call for a public vote. The legislation allowed any two people to apply for a marriage license “regardless of the sex of each person” while allowing religious institutions to refuse to perform same-sex marriage if it was not consistent with their beliefs.
Same-sex marriage is legal in only 4 states – Massachusetts, Connecticut, Vermont and Iowa.
Published on
November 2, 2009 by
Sandra Slaga
Maine voters head to the polls Tuesday to decide whether to overturn a law allowing same-sex marriage. The law was passed last May and signed by Gov. John E. Baldacci (D).
Question 1 on the ballot is titled “An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom.” The question reads: “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?”
If the legislation is upheld, Maine would join Massachusetts, Vermont, Iowa, Connecticut and New Hampshire in allowing same-sex marriage.
Published on
October 30, 2009 by
Sandra Slaga
The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 was signed into law October 28th by President Obama. The Act extends federal hate crime law to cover attacks based on sexual orientation and is the first significant expansion of federal criminal civil rights laws in more than ten years.
Specifically, the legislation creates a new criminal code provision which makes it a violation of federal law to willfully cause bodily injury to any person, or attempting to cause bodily injury to any person through the use of fire, a firearm, or an explosive or incendiary device, “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity or disability of any person,” § 249(a)(2)(A) and the conduct occurs in at least one of a series of defined “circumstances” that have a definitive connection with or effect on interstate or foreign commerce, § 249(a)(2)(B). The Act also provides that the Attorney General may award Magrants to state, local, and tribal law enforcement agencies to help them with extraordinary expenses associated with the investigation and prosecution of hate crimes.