Ever since the age of the Babylonian Empire when the first substantial collection of laws were written on tablets of stone, the declaration “It Is Written”
has been used to indicate that what was is indeed written is not to be questioned or contested, and is therefore the final word regarding the matter. All directives, instructions, authority, and laws are based upon written documents.
An area of increased interest in the community is that of estate planning, wills, so-called living wills, and powers of attorney. Many have the misconception that if you do not have such documents, you can just explain your situation to the judge and he will do the right thing. However, the judge can only make orders that comply with what Is Written. Written estate planning documents are an absolute must for everyone, regardless of sexual orientation.
There are about four (4) documents almost everyone should have an attorney draft for them: namely, a General Springing Power of Attorney (General POA), a Power of Attorney for Health Care Decisions (Health Care POA), a Revocable Trust (Trust), and a Pour Over Will.
The Will, or Trust: Should you die, all property you own on your date-of-death becomes property of an Estate. The Estate is named: the Estate of [your name]. Property in an Estate can never be transferred to another person except by Court Order. If you have not prepared a Will or Trust that gives instructions regarding your wishes upon your death, the only authority (it is written) the Court can rely upon to govern ‘to whom goes what’ would be the local written laws: hence the saying, “If you have not prepared a will, then the state has prepared one for you”. Such statutory provisions is most often not be what you would have wished.
Consider this example story that describes a very common occurrence.
John and Gary are a gay couple (but not registered domestic partners), and have been together for several years. John owns a home that is titled in his name because he had good credit. John’s family has been despicably rude to John and Gary, especially John’s sister, who is a real bitch. John has seen his sister only 5 hours during the last 15 years. Gary’s family, which includes two of Gary’s children, has accepted John as a member of their own family, and they enjoy a nice, quiet life together. However, unexpectedly, John dies.
(In most instances, couples have either 1.) failed to draft any documents, or 2.) had a non-lawyer, paralegal, accountant, or other person draft the documents and they are invalid due to incorrectly drafted provisions, or 3.) downloaded or purchased a form which is incorrectly executed.)
In all three of these instances, John’s bitchy sister, who hates gays, and hates Gary, gets the house and all other property that was Johns, and contacts the sheriff who kicks Gary out of the house—immediately, leaving Gary, not only alone, but homeless.
Why?: Because property owned by a decedent cannot change ownership except by Court Order—no exceptions; and, the Court can only order the property to be transferred to another party as prescribed in the intestate statutes (again, only as it is written).
The Power of Attorney for Health Care Decisions (which includes a so-called “Living Will”). Should you be unable to make healthcare decisions, if you have this legal document in which is indicated your wishes regarding feeding tubes or life support, there will be no issue because the decision will be made accordingly—as it is written.
Everyone should have a Health Care POA. In this document you indicate who you appoint as your attorney-in-fact, which is the person who will make healthcare decisions for you when you are unable to make them yourself. This person is called an agent. You can choose any competent person you wish to act as your agent such as your lover or a friend. You, the principal, also indicate in the document specific instructions and wishes. When executing this document, you will need to indicate your approval or disapproval of the following statements:
1. I desire that my life be prolonged to the greatest extent possible, without regard to my condition, the chances I have for recovery or long-term survival, or the cost of the procedures.
2. If I am in a coma which my doctors have reasonably concluded is irreversible I desire that pain relief medication be used but life-sustaining or prolonging treatments NOT be used.
3. If I have an incurable or terminal condition or illness and no reasonable hope of long-term recovery or survival, I desire that pain relief medication be used but life-sustaining or prolonging treatments NOT be used.
4. Withholding or withdrawal of artificial nutrition and hydration may result in death by starvation or dehydration. I want to receive or continue receiving artificial nutrition and hydration by way of the gastrointestinal tract after all other treatment is withheld.
5. I do not desire treatment to be provided and/or continued if the burdens of the treatment outweigh the expected benefits. My attorney-in-fact is to consider the relief of suffering, the preservation or restoration of functioning and the quality as well as the extent of the possible extension of my life. I desire that pain relief medication be used.
Most clients indicate their approval of statements 2, 3, 4 and 5. There are clients who do not agree with number 4 because they feel it may be painful to die of starvation, while others are confident that the pain medication administered would eliminate this problem.
Again, it is what is written that dictates to all parties involved what steps or decisions should be made.