Just out. (Portland, OR) 1983-2013, January 20, 1984, Page 9, Image 9

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    drafting Wills for heterosexual people. For
example, if you are giving all or most of your
property to your lover, you may want to con­
sider putting a specific clause in your Will
disinheriting your family. This clause would
make it clear that you had not forgotten your
family, but really chose to give your property
to your lover.
The most difficult area for lesbians and gay
men is providing for guardianship of their
children. Many of us who have custody of our
children live in a situation where our lover is,
for all practical purposes, the children’s other
parent It would seem natural and in the
children’s best interest that that person
should care for the children upon our death.
However, it is extremely unlikely that a Court
will go along with this arrangement even if it
is explicitly spelled out in the Will. Unless the
other biological parent can be proven to be
unfit, that person will probably become the
children’s guardian upon the death of the
custodial parent What can be done in your
Will is to elaborate all of the reasons why the
other biological parent should not be the
custodial parent for the children. The same
should be done for any member of either
your family or the other biological parent’s
family who might conceivably fight for
custody of the children. You should also put
into your Will all of the reasons why you are
naming your lover, or whoever you are nam­
ing, as your choice for guardian.
In addition to using your Will as a chance to
tell the Court why your children’s best
interests would be served by honoring your
appointment for guardian, you can also
make it financially difficult for anyone to con­
test your guardianship choice. A guardianship
fight between a natural parent or family
member and a lesbian or gay man is going to
be an extremely expensive fig h t Your Will, in
your property distribution section, could give
your choice for guardian all sums necessary
to cover their attorney’s fees and costs in
waging any guardianship contest Your Will
could also provide that no one who contests
your guardianship choice should be paid any
attorney’s fees or costs from your estate, re­
gardless of the outcome of the guardianship
contest If you are naming particular mem­
bers of your family to receive any property
under your Will, but you do not want them to
be guardian of your children, you could pro­
vide that they do not receive that property
should they wage a guardianship contest
You can also provide that your choice for
guardian, if that is also your choice for trustee
of the children’s money, to continue to be
trustee even if she or he is not permitted to
serve as guardian. All of those measures can
make it financially unappetizing for anyone to
contest your choice for guardian.
Another provision in the Will that long­
term, committed lesbian and gay couples
may want to consider is a provision making
your Wills mutual Wills. A mutual Will is one
which provides for a common plan for dis­
tribution of your property upon the death of
both of you. You may decide, for instance,
that after both of you have died, you want
one-half of what is left of both of your proper­
ties to go to one person’s side of the family,
and the other half to go to the other person’s
family. A mutual Will (which is actually two
separate Wills) puts that plan into both of
your Wills and provides that neither of you will
change their Will without notice to the other
person. A mutual Will also provides that upon
the death of one of you, the other person
cannot then change their Will. This locks
both of you into your agreement on property
distribution, unless the other person is given
notice that there is to be a change.
Life Insurance Trusts. Many people have
life insurance policies and want the proceeds
of the policy to be used for their children’s
benefit with their lover as the person they
want overeeing the spending of the money. If
the children are named as beneficiaries on
the life insurance, upon the death of the pa­
rent the life insurance company will not pay
the money directly to the children, if they are
minors. The life insurance company will wait
until a conservator is appointed by the Court
to receive the proceeds. The Court is most
likely to appoint as conservator the children’s
other biological parent or a blood relative of
the deceased parent This is true, even
though your Will may name as trustee your
lover or some other person. The life insur­
ance proceeds do not pass through the Will
and the Court is not bound by who you name
as trustee in your will.
There are two ways to avoid this result. One
is to name your estate as beneficiary in your
Will, and to set up a trust provision in your
W ill naming who you want as trustee. Then
the life insurance proceeds would pass
through your Will and your choice of trustee
would most likely be honored. The disad­
vantages to this method is that the cost of
probate would go up, because the cost of
probate is based on the amount of property
that passes through your Will; it would prob­
ably take longer for the trust to get set up
because it goes through probate; and your
trustee would have to make annual account­
ings to the Court
The other method is to get a trust set up in
your lifetime, which would be funded upon
your death by the proceeds of the life insur­
ance policies. This is a separate document
that a lawyer would draw up. This trust agree­
ment would name your choice as trustee,
and provide for the terms of the trust You
would then notify your insurance company of
the existence of the trust and find out from
the insurance company how they want the
beneficiary on your policy designated so that
the trust becomes the beneficiary.
Medical Authorizations. In the event of a
medical emergency, our society gives the
right to prescribe treatment for you in the
event you are unable to prescribe it for your­
self to your heterosexual spouse or your
blood relatives. You can have drafted for you
a document which states that you want some
other person to make medical decisions for
you, in the event you cannot make them for
yourself. That document is commonly called
a medical authorization. It can also provide
that you want the same visiting rights as
would be extended to your family to be ex­
tended to the person that you name in the
medical authorization. If the medical authori­
zation is also drafted so that it is a limited
power of attorney, it should be honored by
doctors and hospitals. As a practical matter,
where life-threatening treatment is involved,
the doctor or hospital may require that you
go to Court to get the medical authorization
enforced.
Powers of Attorney. A Power of Attorney is
a document that gives another person the
right to do that which you could do yourself.
The Power may be general, giving the other
person the right to do anything you could
legally do. The Power of Attorney may be
specific, and spell out exactly what it is you
are giving the other person the right to do.
(For example, to sell your car for you.) A
number of people have talked to me about
drafting Powers of Attorney that will allow
their lover to handle their affairs in the event
they become incapacitated. It is somewhat
unlikely that this kind of Power of Attorney
would ever be honored, because the person
who you want to honor it will have no way of
knowing whether you are incapacitated. If
you should become incapacitated, someone
will have to apply to the Court to be appointed
your conservator and guardian. Normally, the
Court gives first preference to your legal
spouse or a blood relative. However, if your
lover has a Power of Attorney to take effect
when you become incapacitated, this might
encourage the Court to appoint your lover,
rather than the other persons who normally
get preference.
If you decide that you want some of the
documents that I have described in this arti­
cle, you should see a lawyer, or get a good
self-help handbook. Peoples Law Books. Inc.,
is in the process of publishing a good self
help book on Wills that will cover problems
faced by lesbians and gays. They can be
reached at P.O. Box 14223, Portland, Oregon
97214, or by calling 295-2459. The antici­
pated date of publication of this book is
March 1,1984. There is much that we can do
ourselves or through lawyers to prevent the
heterosexual presumptions of the law from
ruling our lives.
A Woman’s Place Bookstore
celebrates their
11th Anniversary
with a benefit
Sock Hop
with
The Dyketones
Saturday, Feb. 4th
at the
Echo Theater
1515 SE 37th (near Hawthorne)
8 pm-midnight
We now have a Pool Table
Wednesday Night
FREE POOL!
Expanded Dinner Menu
O pen Sun. -Thurs 5 p. m. -11 p. m.
Fri-Sat 5 p. m. -1 a. m.
Tickets $5.00. Available in advance at
A Woman's Place Bookstore.
Wheelchair accessible.
Childcare by reservation only.
Call 236-3609 by Jan. 31.
1481NE Broadwav
284-1485
Just O u t Januarv 20 c^bruarv 3
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