The lawmakers haven’t seen fit to protect the rights of gay couples. But we can protect ourselves – all it takes is a good lawyer. Or a little willingness to do your homework. Here are some basics to get you started.
You know you need to do it, but you keep putting it off … getting your legal affairs in order with your partner. But think of it as the smart way to celebrate Valentine’s Day. The laws may not protect us the way they should—but if we’re smart, we can protect ourselves.
The problem is that this brings up two of the least sexy topics around: death and lawyers.
But if you’ve decided to commit to a lifetime together, it is the soul of love and intelligence to make sure you have legal protections for your life together as a couple. That you are not prevented from caring and being cared for in sickness and in health. And that when death do you part, one of you isn’t left aghast, homeless and penniless.
After the recent wave of anti-partnership laws and state constitutional amendments around the country, pursuing legal protection is one of the few ways couples can gain legal recognition of each others’ status in their lives. Because of the convoluted nature of state laws in Texas, it is often smart to consult a lawyer to make sure you know all the options available. (And to make sure that no one can undo your work in court down the road.)
Some of the precautions apply to everyone, gay and straight, single or coupled. Everyone needs to think about putting the legal documents in place if the unforeseeable should happen. A licensed lawyer with experience in probate law (which covers issues related after death), as well as life issues, can help explain current law.
Before you meet with a lawyer, you’ll need to have an honest, open talk with each other. Who do you want to designate as your legal representative and heir? Do you want to do that at all? In the event that a couple will be speaking with a lawyer, such a conversation is best handled before the meeting to avoid misunderstandings and communication issues (and the expense of having an argument at $150 an hour!).
While a lawyer can provide the best options available to individuals and couples, the following gives some of the types of tools for people to rely on to ensure their estate and legal wishes are protected.
Your Wishes about Your Property
Last Will and Testament: This is all-important. If you and your partner do not have wills that leave your property and assets to each other, then state law automatically passes the property to your biological or legal family (or if no family member or heir is alive to claim it, it will pass to the state).
You may be tempted to draft your own will. Most lawyers advise against this, for the simple reason that there are other lawyers out there ready to dispute your will if hired by some conflicting party, and they may well be able to upend your will if you don’t know what you’re doing when you made it out. There are as many individual situations as there are individuals, so it is hard to cookie-cut an answer or rely on a form. If your will is at all complicated, or if you think there is any chance that it might be contested by your family or someone else (like a previous spouse), then money spent on the front end to hire a lawyer will save your partner a lot of money on the back end.
If you own a house together, make sure you talk about deeding your interest in the house to each other. If you don’t take care of this detail, when one of you dies, the deceased partner’s 50-percent interest will go to his family.
Joint Ownership: Often couples will get together and one will own the house and the other will move in. They both pay the mortgage, both pay for repairs, both deal with the hassles. Then the partner with her name on the deed gets into a car wreck and goes into a coma. If the family is so inclined, the bereaved spouse is out on the street–and by the way, no, you cannot go see your partner in intensive care. That’s just for family members.
This does not need to happen.
If the house-owning partner makes a gift of joint ownership in the house and puts her partner’s name on the deed, then both are protected. Or the house-owning partner may designate a “life interest” for her partner in the house. This means the surviving partner can reside in the house for the rest of her life, but after she dies it reverts back to the next of kin.
If you are buying a house together, make absolutely sure that the legal documents support that fact.
Put stocks, cars, and other major assets in both your names.
Some partners even take an end run around the legal restrictions against gay couples, and one adopts the other. Then they can avail themselves of many of the legal rights that family members enjoy.
Your Wishes about Your Health
Medical Power of Attorney: It is easier than you think to find yourself on a ventilator, unable to talk, even if only temporarily. You need to know that the person calling the shots with the doctors is your partner, or someone else you trust, and not your clueless distracted brother or some other next-of-kin who may not know or agree with your wishes. You don’t need that kind of hell.
With Medical Power of Attorney, you get to stipulate who will make health care decisions for you if you’re incapacitated. Medical Power of Attorney only applies when you are incapable of dictating your own medical care. It may be a temporary state or it may be permanent. Once you become capable again, you are back in the driver’s seat.
You can find the legal form for Medical Power of Attorney at the Texas Medical Association’s website: http://www.texmed.org/. It needs to be signed, dated, and witnessed. (The form will guide you through the steps, and let you know who is and isn’t eligible to be a witness.) You can also designate two alternates to make medical decisions. The form is simple to fill out, and you do not need a lawyer. Once you’ve completed it, give a copy to your primary physician. If partners want to grant decision-making powers to each other, two forms are needed, one for each person.
Living Will (technical name: Medical Directive to Physicians and Family or Surrogates): This is the Terri Schaivo document. (Or rather the document she didn’t have.) This is where you indicate your preferences in terms of life support and other medical variables. Do you want to be on life support? If so, what type? How long? This is no remote theoretical possibility. A third of Americans report that they’ve had to make end-of-life decisions for a loved one.
There exist forms in which you check off boxes–yes to ventilator, no to feeding tube, yes to resuscitating the heart with drugs, no to resuscitating the heart with CPR. However, it can be difficult to anticipate the variety of possibilities that may occur. Most patients on a cardiac recovery ward have a ventilator and feeding tube–there the life-support measures are for recovery, not the sort of indefinite artificial support that many don’t want. In this case, it can be best to appoint someone Medical Power of Attorney, and then talk with them about your general wishes. Are you someone who really does not want heroic measures–you’d rather just go quickly? Or do you want every medical recourse to be tried, as long as there is a chance?
If you do not have medical directives in place, then partners and families may find that the boards of hospitals are making end-of-life decisions, and they may be using very different criteria than you.
Medical Records Release/HIPAA: Without HIPAA (Health Insurance Portability and Accountability Act), doctors and hospitals are not legally permitted to release your medical information to other medical personnel. It was enacted in order to protect patients’ privacy as we bounce around between health insurance providers (thus “portability”). If you have a HIPAA on file, that way your partner can sign for release of your medical information in case you are unable to.
Your Wishes about Your Children
Parenting agreements between people who are not legally married can be complicated, and many people find that despite their best work, the arrangement is not enforceable in the courts. A lawyer is particularly crucial here.
If a partner comes into a relationship with a child, they may wish to designate guardianship to the other partner in their will, although previous court decisions (such as custody orders) will be considered.
If two women have a child together, make sure the non-biological mother adopts the child. Many same-gender couples don’t realize that in cases in which custody for the child is not in dispute or in which the other biological parent is not available, adoption is a legally viable option. Gay couples have been adopting children for years, and the courts rarely deny parents the right to adopt each others’ children. Couples can visit a lawyer with experience with adoptions to determine their options and the best way to care for a child. Some options that fall just short of adoption are available for couples in which adoption is not considered or a choice.