January 21, . 2000 . Ju st m * 2 3
A durable power of attorney for health care allows the desig
nation of someone to make health care choices rather than hav
ing the decision fall on a family member.
Once created, the document should be distributed widely. All
health care providers, immediate family members and the person
designated to make health decisions need to get copies of the
document.
& SENSE
Necessary
paperwork
Other documents
While Clifford and Lustig agree that a will and a durable
power of attorney for health care are the most important docu
ments a couple can have, other paperwork can be useful.
A durable power of attorney for financial decisions can allow
someone to make legally binding pecuniary choices on behalf of
his or her partner. The document would allow a partner to make
any and all financial decisions, so it is a powerful instrument. He
or she could change pension options or access a bank account,
for example.
The term “durable,” however, means the document takes
effect only when a person is physically or mentally incapable of
making a decision for themselves.
A limited power of attorney could also be put in place. It
allows a partner to make decisions at any time, but it is not valid
if the signatory partner is incapacitated.
Both the limited and durable powers of attorney expire upon
the death of the signatory partner.
A living will is another document to consider. People with
strong preferences about whether they should be resuscitated can
benefit ffom this document. It also takes a burden off family
members who could be consulted about life-support measures.
(Partners, o f course, are not consulted because they are not legal
ly considered family.)
If you’re a gay man or lesbian,
coupled or single, there are some
documents you may need
to protect yourself
by
G ip P laster
arriage comes with a number of rights that can’t be
hilly simulated for gay and lesbian couples who, as you
likely know, are not allowed to marry legally. A few
carefully prepared documents, however, can make a
big difference in protecting a couples rights.
While there are a number of documents that gay and lesbian
couples may want to consider having prepared, two items are cru
cial, according to Denis Clifford, a co-author of A Legal Guide for
Lesbian and Gay Couples.
M
The transfer document
“Without some sort of transfer document, the only people
with the right to inherit your property are your family,” explains
Clifford.
That means most people need a last will and testament. In
most situations, property that is owned jointly will pass to the
surviving joint owner, but that is not always the case— a court
that does not respect the rights of gay men and lesbians could get
in the way. It is much more difficult to undo the doings of a will.
“If there is a will, the court has to honor it,” according to
Harold Lustig, author of 4 Steps to Financial Security for Lesbian
and Gay Couples.
Members of a same-sex couple are not legally considered fami
ly, so they cannot inherit property ffom a partner who dies with
out a will.
Simply put, a will provides for the transfer of certain assets to
people whom the deceased person designates before his or her
death. Wills only come into effect after death, and they can be
changed anytime before death. A will doesn’t affect assets like life
insurance or retirement accounts for which a beneficiary is
named in advance.
Some lawyers tout “revocable living trusts” as an alternative
to a will so that probate costs— expenses related to legally pro
cessing a will— can be avoided. Estates may still go into probate,
however, if everything is not named in the trust, so their use may
be limited.
A taxing issue
Continued from Page 21
still do not. That means that a single gay or lesbian person with
no offspring will not have the benefits that children and grand
children can provide. The emotional toll of the loneliness that
can result is obvious, but it has a financial toll, too.
Without children, there is no family to pay for trips to the
movies or dinners out. There is also no one to buy gifts that help
furnish a retirement home. All those expenses come out of the
retiree s pocket.
Single gay and lesbian people, many experts recommend,
need to plan for retirement just as carefully as couples do, because
single queers will likely need more income than single straights,
who may be more likely to have a family support system.
Freer spirits
While corporate employment usually comes with a retirement
plan, self-employed people and those who work at companies
Clifford says people who are older, in poor health or living
with HIV/AIDS could benefit ffom a revocable living trust, but
others will do fine with a will.
Laziness is not a good course of action for any gay man or les
bian, Clifford adds, because the state makes decisions when docu
ments are absent.
“If you just want everything to go to your family members as
state law requires, 1 guess you don’t have to do anything," he says.
A health care document
The most important document for a gay or lesbian person,
whether in a couple or not, is a durable power of attorney for
heath care, says Lustig.
“If you end up in the hospital, the only way you can survive is
with an advocate in there,” he says.
That advocate needs to be someone familiar with the patient’s
medical situation and, even more importantly, someone the
patient trusts.
“N o one except possibly some person in your family has the
authority to make your health care decisions for you unless you
give them the power to," Clifford says.
When people are incapacitated and unable to make medical
decisions, health care providers usually turn first to the family to
determine what the patient might have wanted. Partners are not
legal relatives and are not consulted.
without retirement plans need a way to put money aside for
retirement, too. Just like for heterosexuals, an IRA could be at
least part of the answer.
An IRA is a shell into which money is placed for retirement.
It is not an investment itself. Each IRA participant chooses to
invest the money in his or her account in one or several of a
wide range of investment vehicles. Some select mutual funds,
individual stocks, bonds, certificates of deposit.
Until 1997, there was only one kind of IRA, now known as a
traditional IRA. Since then, however, those planning for retire
ment have had the option of the newer Roth IRA.
Up to $2,000 a year can go into a traditional IRA (unless
income is less than that). Taxes are not paid on the money
earned by the investment until it is taken out of the account
upon retirement. The advantage is that the money saved by
deferring taxes is added to the invested amount and therefore
increases the earnings. Retirees are often in a lower tax bracket,
too. Money can be withdrawn as early as age 59 and a half.
The Roth IRA is a bit different, and it carries fewer restric
tions. Contributions can continue past age 70 and a half (when
A sunny side
While gay men and lesbians lack some basic rights, looking at
the brighter side reveals that unwed couples are free ffom the
legal obligations marriage carries with it.
“Not being allowed to legally marry certainly constitutes legal
oppression and discrimination,” says Frederick Hertz, another co
author of A Legal Guide for Lesbian and Gay Couples and author
of Legal Affairs: Essential Advice for Same-Sex Couples.
Hertz is an attorney in Oakland, Calif., who provides legal
counsel to same-sex partners on the formation and dissolution of
their relationships.
“A t the same time, however, it also provides you the opportu
nity to design your own kind of partnership,” he adds. “You can
choose whether or not to merge your assets and whether or not
to provide post-separation support to your partner.”
But making good choices requires some knowledge.
“I urge you to seize the opportunity to form your own legally
sound relationship in the happy times so that you can avoid the
conflicts and expense that can arise in the harder times,” Hertz
says.
■ Have you planned for your future, whatever it may bring? Want to
share your thoughts publicly and in 500 words or less! Submit a letter
to the editor at www.justout.com; e-mail it to justout@justout.com; or
mail it to P.O. Box 14400, Portland, OR 97293-0400.
they must stop for a traditional IRA), and contributions can be
withdrawn at any time, although the earnings cannot. However,
contributions to a Roth IRA, which can be up to $2,000 a year,
are never tax deductible. Roth IRAs are also not available to
people with higher incomes.
O f course, an IRA is only one part of sound retirement strate
gy. Other important parts could include money in stocks, bonds
and mutual funds, as well as a supply of money in a savings or
money market account for easy access in an emergency.
With these things in place, half the battle is won. A financial
planner or other advisor can help maximize each investment.
Because same-sex couples in the United States cannot marry,
establishing and maintaining financially sound relationships is
more difficult for gay men and lesbians than for straight people.
Retirement planning is the right thing to do, to protect your
future and your partners.
■ GlP PLASTER is a Texas-based journalist wntmg for gay and lesbian
publications worldwide. He has written extensnely on gay-related con
sumer and fh an aal issues.