A Proactive Approach Toward Estate Planning

To start, proper estate planning would include executing correct health care surrogate designations and the appropriate Health Insurance Portability and Accountability Act (HIPAA) releases to ensure that if one partner is unable to make health care decisions, his or her partner can do so on the other's behalf. The planning involved should ensure that valid health care designations are executed in the state of domicile and that those documents or a separate document contains the appropriate HIPAA release. Each partner should ensure he or she is in a position to obtain and review health records, to consult with physicians and health care experts, and ultimately to make health care decisions for an incapacitated partner.

Most states contain statutes that define the method of designating the health care surrogate and the powers that are granted to that surrogate. Often spouses are given this decision-making authority by health care facilities and granted access to the incapacitated spouse without the necessity of having the health care surrogate document. Spouses of same-sex marriages may not be granted these same courtesies. In addition, the federal government under HIPAA, and the states under similar laws, set out privacy restrictions applicable to health care providers in sharing medical information. In order to serve as an effective health care surrogate, releases should be obtained to ensure the surrogate can obtain medical records and have meaningful conversations with health care professionals.

Finalize a Living Will

A Living Will evidences a partner's desire to avoid prolonged artificial life support. These documents typically stipulate that if two physicians state that the prognosis of recovery from a vegetative state or terminal condition is improbable, artificial life support should be discontinued. Ideally, these documents designate who an individual would like to rely upon to make this critical decision. The Living Will document, unlike the healthcare documents, cannot be overlooked or bypassed by the facility. Thus, most health care facilities will request this document prior to a patient's admission. Some facilities request the patient to execute this document in the facility's lobby.

It is certainly preferable, however, to execute a living will prior to the admission to the facility and to have thoughtful discussions with advisers and with the designee regarding preferences or desires should this tragic event occur. Also, it is important that the designee be able to obtain and review medical records, talk to attending physicians and obtain a second opinion, if necessary, in order to make this important decision. Hence, the designee should make sure they also have the appropriate health care designation and HIPAA releases.

Durable Power of Attorney and Guardianship

A durable power of attorney grants rights to the designated assignee or attorney-in-fact to act on behalf of an incapacitated partner with regard to the assets of the incapacitated. Again, the proper method of designation and the powers granted are typically delineated by state statute. The durable power of attorney can provide the designee with the ability to access money in a bank account in the name of the incapacitated individual or to execute deeds or other real estate documents to deal with property owned, or partially owned, by the individual. Without the durable power of attorney, in the event of the incapacity of a partner, his or her assets cannot be transferred or accessed without appointing a guardian in a court of law.

While proper estate planning should be done to avoid the necessity of a guardianship, conditions that spur this process are often less than ideal, and it may be necessary to appoint a guardian in a court of law to act for an incapacitated individual. Unfortunately, if dementia or Alzheimer's leaves the individual distressed, paranoid or hostile, he or she may revoke the durable power of attorney, thereby necessitating the establishment of a guardianship. Alternatively, the family of an incapacitated individual, or a protective agency, may challenge or litigate over the validity of the durable power of attorney.

The statutes of many states indicate that the spouse would have preference in serving as the guardian in a traditional marriage. This preference may not extend to the spouse in a same-sex marriage. It is important, therefore, for partners of a same-sex marriage to designate their preference that each other be named as guardian if a guardianship should become necessary. This designation is typically referred to as the designation of a “Pre-Need Guardian” and can be done as part of routine estate planning. This document will provide the preference to the same-sex marriage partner that may not be afforded by the law of the state.

The conclusion of this article will discuss the rights of the surviving spouse.

Linda L. Snelling is a Fort Lauderdale, FL-based partner in the estate planning practice group of Hinshaw & Culbertson LLP. She can be reached at [email protected].

Some states, such as Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont, have legalized same-sex marriage while others ' like Maine, the District of Columbia, and Hawaii ' recognize or grant certain rights to same-sex couples. Most states, however, ban same-sex marriage and do not recognize such unions, even if they were legal in the state in which they took place. Most recently, California voters denied recognition of gay marriage in Proposition 8. In addition to a great majority of states, the federal government of the United States does not recognize same-sex marriage, despite recent comments by President Obama suggesting that he may address same sex rights in some capacity.

The issue is critical and hotly debated because marriage confers certain benefits under state and federal law that are generally denied to same-sex couples. Many of these protections and benefits pertain to estate planning. For example, most states grant certain rights and protections to married individuals in the event of the incapacity or death of a spouse. The federal government also confers certain tax benefits to married couples under the tax law that relates to estate planning. These rights are generally not granted to same-sex couples, making it imperative for same-sex couples to plan accordingly.

Don't Wait for Surrogate and Release Documents

To start, proper estate planning would include executing correct health care surrogate designations and the appropriate Health Insurance Portability and Accountability Act (HIPAA) releases to ensure that if one partner is unable to make health care decisions, his or her partner can do so on the other's behalf. The planning involved should ensure that valid health care designations are executed in the state of domicile and that those documents or a separate document contains the appropriate HIPAA release. Each partner should ensure he or she is in a position to obtain and review health records, to consult with physicians and health care experts, and ultimately to make health care decisions for an incapacitated partner.

Most states contain statutes that define the method of designating the health care surrogate and the powers that are granted to that surrogate. Often spouses are given this decision-making authority by health care facilities and granted access to the incapacitated spouse without the necessity of having the health care surrogate document. Spouses of same-sex marriages may not be granted these same courtesies. In addition, the federal government under HIPAA, and the states under similar laws, set out privacy restrictions applicable to health care providers in sharing medical information. In order to serve as an effective health care surrogate, releases should be obtained to ensure the surrogate can obtain medical records and have meaningful conversations with health care professionals.

Finalize a Living Will

A Living Will evidences a partner's desire to avoid prolonged artificial life support. These documents typically stipulate that if two physicians state that the prognosis of recovery from a vegetative state or terminal condition is improbable, artificial life support should be discontinued. Ideally, these documents designate who an individual would like to rely upon to make this critical decision. The Living Will document, unlike the healthcare documents, cannot be overlooked or bypassed by the facility. Thus, most health care facilities will request this document prior to a patient's admission. Some facilities request the patient to execute this document in the facility's lobby.

It is certainly preferable, however, to execute a living will prior to the admission to the facility and to have thoughtful discussions with advisers and with the designee regarding preferences or desires should this tragic event occur. Also, it is important that the designee be able to obtain and review medical records, talk to attending physicians and obtain a second opinion, if necessary, in order to make this important decision. Hence, the designee should make sure they also have the appropriate health care designation and HIPAA releases.

Durable Power of Attorney and Guardianship

A durable power of attorney grants rights to the designated assignee or attorney-in-fact to act on behalf of an incapacitated partner with regard to the assets of the incapacitated. Again, the proper method of designation and the powers granted are typically delineated by state statute. The durable power of attorney can provide the designee with the ability to access money in a bank account in the name of the incapacitated individual or to execute deeds or other real estate documents to deal with property owned, or partially owned, by the individual. Without the durable power of attorney, in the event of the incapacity of a partner, his or her assets cannot be transferred or accessed without appointing a guardian in a court of law.

While proper estate planning should be done to avoid the necessity of a guardianship, conditions that spur this process are often less than ideal, and it may be necessary to appoint a guardian in a court of law to act for an incapacitated individual. Unfortunately, if dementia or Alzheimer's leaves the individual distressed, paranoid or hostile, he or she may revoke the durable power of attorney, thereby necessitating the establishment of a guardianship. Alternatively, the family of an incapacitated individual, or a protective agency, may challenge or litigate over the validity of the durable power of attorney.

The statutes of many states indicate that the spouse would have preference in serving as the guardian in a traditional marriage. This preference may not extend to the spouse in a same-sex marriage. It is important, therefore, for partners of a same-sex marriage to designate their preference that each other be named as guardian if a guardianship should become necessary. This designation is typically referred to as the designation of a “Pre-Need Guardian” and can be done as part of routine estate planning. This document will provide the preference to the same-sex marriage partner that may not be afforded by the law of the state.

The conclusion of this article will discuss the rights of the surviving spouse.

Linda L. Snelling is a Fort Lauderdale, FL-based partner in the estate planning practice group of Hinshaw & Culbertson LLP. She can be reached at [email protected].