All gays and lesbians, whether coupled or not, should consider what will happen if they become seriously ill or suffer a medical emergency. Ask yourself several questions. Who do you want to have authority to act for you if you are incapacitated and cannot make your own health care decisions? Who do you want to be allowed to visit you in intensive care? Who do you want to have legal authority to handle your finances if you can’t?
You can control these matters by preparing some simple legal documents which will ensure that your desires are carried out if you become incapacitated. Using different documents, you can provide for your health care and treatment, and management of your finances.
Unfortunately, if there has been no advance preparation, there is no assurance that your wishes will be respected or followed.
In a well-known case from several years ago, Karen Thompson was forbidden to have any contact with, or authority to act for, her incapacitated lover, Sharon Kowalski. Sharon was seriously injured in a car accident. Her mother and father ran to court to remove her from Karen’s care after learning that the women were a couple. Karen and her lawyer persisted, however, and after a seven-year battle, the Minnesota Court of Appeals finally named Karen as Sharon’s legal guardian. By then, however, Sharon had lost years of Karen’s aid in her recovery, which can never be made up.
Other common situations involve people with serious illnesses. Often, the partner and other people the patient regards as “family” are excluded from visiting him or her in the hospital by his biological family.
Sometimes, biological family members have religious—and medical—ideas that the ill person rejects. Because hospitals and doctors conventionally look to the immediate family for authority to act (absent a document giving the lover that power), the partner is sometimes forced to look on in horror while the doctor is instructed in ways that the partner knows are contrary to his or her mate’s wishes.
There are more than just medical care decisions to make when a person is ill or incapacitated. Someone must pay bills, deposit checks and take care of other financial matters.
The authority to make financial decisions traditionally belongs to a spouse, not a partner or friend. But often you can use a simple document to name and authorize another person to manage your money matters.
Exhaustion, recurring dementia, long periods of treatment or other hardships may leave you unable to tend to practical matters. If this happens, you’ll need someone to take care of basic tasks such as paying bills, making bank deposits, watching over investments or collecting insurance and government benefits.
If you don’t plan ahead and you become incapacitated, a court will decide who should handle your finances — and it might not appoint the person you would have chosen.
Fortunately, there’s a simple way to name a trusted person to handle your money matters, prepare a durable power of attorney for finances.
With a durable power of attorney for finances, you can:
- name the person who will handle your financial tasks (this person is called your attorney-in-fact)
- appoint someone to replace your attorney-in-fact if he or she cannot serve
- state exactly how much authority you want your attorney-in-fact to have over your finances
- specify when that authority should take effect
In addition, you can use your document to place limits on the power of your attorney-in-fact.
For example, you might want to forbid your attorney-in-fact from selling your home, or require her to use money from specified bank accounts to pay certain bills. You can include such restrictions in the “special instructions” section of the document.
Principal: The person who creates and signs the power of attorney document, authorizing someone else to act for him or her. If you make a durable power of attorney for finances, you are the principal.
Attorney-in-Fact: The person who is authorized to act for the principal. In many states, the attorney-in-fact is also referred to as an agent of the principal.
Alternate Attorney-in-Fact: The person who takes over as attorney-in-fact if your first choice cannot or will not serve. Also called successor attorney-in-fact.
Durable Power of Attorney: A power of attorney that will remain in effect even if the principal becomes incapacitated, or will take effect only if the principal becomes incapacitated.
Incapacitated: Unable to handle one’s own financial matters or healthcare decisions. Also called disabled or incompetent in some states. Usually, a physician makes the determination.
Springing Durable Power of Attorney: A durable power of attorney that takes effect only if a physician determines that the principal cannot handle his or her own financial affairs. In some states, this document may be called a conditional power of attorney.
The most important decision you’ll make when you create a durable power of attorney for finances is choosing your attorney-in-fact. It’s crucial to name someone you trust completely. In most situations, the attorney-in-fact does not need extensive experience in financial management: common sense, dependability and complete honesty are enough. Your attorney-in-fact can usually get any reasonably necessary professional help — from an accountant, lawyer or tax preparer, perhaps — and pay for it out of your assets.
You will probably want to name your partner as your attorney-in-fact, though some people may feel a close friend or family member is the best person for the job.
Keep in mind that it’s best to appoint just one person to serve as your attorney-in-fact. Appointing more than one person opens the door to conflicts between them and may disrupt the handling of your finances.
That said, however, it is important to name at least one trusted person as an alternate attorney-in-fact—someone to take over if your first choice can’t serve.
The majority of states permit some form of durable power of attorney for finances. You may be able to get a generic form on the Web site of Nolo Press, nolo.com. In addition, many banks and other financial institutions often have their own durable power of attorney forms.
It may be a good idea to use a financial institution’s form whenever that’s an option. Using the form that your financial institution is most familiar with may make it easier for your attorney-in-fact to get things done.
After you’ve prepared your durable power of attorney, you may want to take just a few simple steps to make sure the document is legally valid.
Sign your power of attorney in the presence of a notary public for your state. In some states, notarization is required by law to make the power of attorney valid.
But even where law doesn’t require it, custom does. A power of attorney that isn’t notarized may not be accepted by people or institutions with whom your attorney-in-fact must deal.
Most states don’t require a power of attorney to be signed in front of witnesses. A few states do: Arizona requires one witness; Arkansas, Connecticut, the District of Columbia, Florida, Georgia, Michigan, Ohio, Oklahoma, Pennsylvania, South Carolina and Vermont all require two witnesses.
Witness requirements normally consist of the following:
- Witnesses must be present when you sign the document in front of the notary.
- Witnesses must be mentally competent adults.
- Your attorney-in-fact can’t be a witness.
In case they’re ever needed, it’s a good idea to choose witnesses who live nearby and will be easy to contact.
You may need to put a copy of your durable power of attorney on file in the land records office of any counties where you own real estate. This office is called the County Recorder’s or Land Registry Office in most states.
Just two states, North Carolina and South Carolina, require you to record a power of attorney for it to be durable—that is, for it to remain in effect if you become incapacitated.
In other states, you must record the power of attorney only if it gives your attorney-in-fact authority over your real estate. If the document isn’t in the public records, your attorney-infact won’t be able to sell, mortgage or transfer your property.Respecting Your Wishes if You Become Ill or Incapacitated: A Guide for Gay and Lesbian Couples by Amanda Miller