Power of Attorney and Estate Planning for Gay and Lesbian Couples - Provide for Your Loved Ones

By Kenneth A. Vercammen As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority do not take the time to create a Power of Attorney. National statistics indicate that 80% of Americans die without leaving a Will. Even more do not have a Power of Attorney. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have wills). Whatever the excuse, it is clear that people would benefit from having a Will. In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays. Reasons to have a Power of Attorney What are these powers of attorney? A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principals behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled. The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal. Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the new New Jersey Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now. The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated persons family members. Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following: 1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate. 2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. 3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent. 4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities. 5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed. 6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions. 7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing. You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents. IF YOU HAVE NO WILL: If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate: * State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Possible additional State inheritance taxes and Federal estate taxes * If you have no registered domestic partner or close relatives the State may take your property * The procedure to distribute assets becomes more complicated - and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits between your partner and your family. When your loved ones are grieving and dealing with death, they shouldn¹t be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that. THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON: 1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC 3RD: DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH: POWERS 13TH: SELF PROVING WILL 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions. WHY PERIODIC REVIEW IS ESSENTIAL Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are: * Partnership, death, divorce or separation affecting people named in your Will *Significant changes in the value of your total assets or in any particular assets which you own * Changes in your relationships * A change in your State domicile * Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving *Annual changes in tax law MAY I CHANGE MY WILL? Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will. SPECIAL NOTE: This information was issued to inform and not to advise. The statements are general, and individual facts in a given case may alter their application or involve other laws not referred to here. For specific legal advice, contact an attorney. Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on litigation topics. He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. Call our office to schedule a "confidential" appointment 732-572-0500