Monday, October 1, 2007

Estate Planning Series- Durable Power of Attorney, Part I

I should come up with a more lively title, but planning for your grave illness and/or death is anything but entertaining. The fact of the matter is, I've been meaning to write this post for a while now, but it always seemed so daunting. You already read (hopefully) my I-am-not-a-real-live-financial-planner disclaimer, so you might as well also be forewarned that I am most certainly not a lawyer or a legal scholar. Which is why I'm writing this post about legal protection.

Everybody rattles off the things every gay couple needs, or every not-officially-married couple needs. A will. A living will. A health care power of attorney. A financial power of attorney. A notarized statement from you stating that your partner will be the first in line to visit you at a hospital. It's a short list but long on time and effort. So I decided I should put my money where my mouth is and you all get to witness just how easy it is for me to stumble through the legalese. One by one I will knock off my estate plan must-haves, and do what any responsible person should do in a relationship that is not recognized by the government; legally protect me and my partner.

Not all families are created equal in the eyes of the law. You could be live-in boyfriend and girlfriend, and if you are hospitalized it is your mother, who you haven't spoken to in years, who is the only one allowed to see you. Maybe you're single, own your own home. Do you want the state to decide where your home goes? What if you want it to be given to a sibling instead of your parents. What are the tax consequences if your estate goes straight to court? And if you're a queer family, well, we're pretty much up a creek without a paddle. So we have to make our own paddles.

I decided to start with the easiest and cheapest, the durable power of attorney. After a little googling around I found a free download here, for a durable power of attorney in New York State. Estate law is stringently tied to state law, so in your research you must refer only to your home state. Of course, federal law doesn't lose its importance (hello, one thousand one hundred and thirty eight rights, benefits, and protections that are provided to married couples), and a lot of estate planning involves filling those enormous gaps in your own protection.

What, exactly, does a durable power of attorney protect? You are granting power to someone else to act in your stead. It is not something to be taken lightly, which is one of the reasons why it is suggested as a mandatory document in estate planning for gay and lesbian couples. It is in effect whether or not you are incompetent, incapacitated, or just plain old out to lunch. You lay out what, exactly, the person can do. You can revoke or alter it at any time. While there are other powers of attorney, it is generally considered that durable power of attorney is most relevant to queer couples and/or unmarried couples. After all, it's when you are at your weakest that your need the most protection; to access your bank account to pay your student loans, or just to even be admitted into your hospital room. But don't be fooled, even married couples need a durable power of attorney. The law protects some more than others, but it still doesn't grant you the sun and the moon. For example, you cannot sell your spouse's stock in order to pay for medical bills. Married, "married", single, domestically partnered, or in a long term relationship that just started- if you are ever in the unfortunate position of being temporarily unable to speak and act for yourself, do you really want the government to do it for you?

Research, research research. Read your state government's website. See a lawyer. I'm going to forward my own form to a friend for review. And if there are any lawyers out there or people who have done this, please share your stories! Hopefully, I'll post an update this week after having finished the easiest (and cheapest!) component of my estate plan.


Ms. M&P said...

Wow. This is great! Thanks for delving into this because I've rarely even thought about it. I'm going to research this ASAP.

SavingDiva said...

I've never really thought about it. I probably should look into this. However, I would like my parents to have control over me if I become a vegetable.