"It is frankly rude to die without a will. And it's rude to die without medical power of attorney. It's just regular rude people," said attorney Amanda Shelton to the room full of older adults at the Gay Elders of Southeastern Michigan panel on legal issues held at Affirmations on Sept. 27. "Because your loved ones, they deserve to know what you want. They deserve to not be grasping around in the dark at a period of time in which they themselves are going through something very traumatic. So be polite. Get a will and a medical power of attorney."
The panel of expert speakers provided the community with free information about inheritance, wills, trusts and powers of attorney. Their talks gave specific information for the LGBT community whose legal needs may be different than individuals who have the freedom to get married, to jointly adopt children, or who may have difficulty asserting rights during times of crisis if there is not proper paperwork in place.
Michigan Stonewall Bar Association President and Attorney at Nesi & Associates Tim Cordes spoke about "Intestate Succession," or the way that property is passed on when someone dies. He explained that in Michigan, if someone does not have a will, their property will go into probate where it could be divided up by the state, with a living spouse given preferential status. Without a spouse, the state then would divide the property among living relatives, first considering children, then parents, and then branching out from there. If no relatives can be found, the property goes to the state. Because same-gender couples cannot be legally married in Michigan, partners have no legal claim of inheritance.
Inheritance
Cords explained some of the ways that couples can make sure that assets go to their partner in the event of death.
Wills are the most obvious form of protection, although they can be contested in court. There are other documents that can help back up the intentions expressed in one's will, such as property titles, contracts, insurance policies and powers of attorney.
A shared property that is in both people's names, like a bank account, car or home, can have clauses so that upon death the remaining person gets automatic possession.
Life insurance policies can also be left to any beneficiary that the policyholder choses.
Power of Attorney
Shelton's talk focused on the need to have a medical power of attorney and a financial power of attorney, which may or may not be the same person depending on the circumstance. A medical power of attorney, or patient advocate designation, tells doctors, hospitals and care providers exactly who may make decisions on your behalf when you are incapacitated.
"The medical power of attorney was particularly important for our family," Shelton said. "My wife and I have two children, both of which I bore myself… so it was very, very, very important for us to make sure she can make any choices that would need to come about should anything go awry."
She said that it's important for LGBT people of all ages to make sure their intent is on paper. "Without that document your partner has no rights to be in the hospital with you, has no rights to make medical decisions for you if you become incapacitated. We've had many stories and cases where people have been kept out of the hospital when their partner dies. So the medical power of attorney is very important."
Financial power of attorney also holds a lot of importance. This power can be given from the signing of the document, or upon incapacity or death. This allows another person, for example, one's partner, the ability to manage assets of the other.
Wills and Trusts
Attorney Henry Grix of Dickinson-Wright shared information about wills and trusts. "Even though we don't have equal rights, we have a Constitutional Right to declare our intentions," Grix said. He explained that even a hand-written document can suffice in a Michigan court, but that for a will to be strong enough to hold up in a court battle it's best to have one prepared by a professional attorney. "We have a special need as LGBT people to want to have our intentions set forth clearly."
Without a strong will, the state could choose to distribute one's property among legally-recognized family.
In addition to wills, those that have assets to protect may benefit from setting up a trust. He explained that a trust does not have to court unless someone contests it, and that control of the assets can be given to the trustee before or after death, and is revocable.
"A trust is a very private, very efficient way to administer property," he said, noting the importance of having an experienced attorney help establishing it properly.
Reverse Mortgage
One tool that may be helpful to seniors is the availability of Reverse Mortgages. These loans are taken out against the equity in the house and don't need to be repaid until the person moves out of the house, or passes away.
Molly Giles of the Findling Law Firm is experienced in helping clients with reverse mortgages. She explained some of the benefits, including that they are a non-recourse loan, meaning that if the loan defaults the bank can only foreclose on the house rather than going after the delinquent homeowner or the deceased's estate.
She cautioned that those seeking reverse mortgages make sure that their partner's name is also on the house and on the loan, otherwise the arrangement would not continue after the homeowner's death and the loan would become due. She also said that those receiving public benefits should take care that the amount of their loan disbursement is not so great as to affect their benefit eligibility.
Another word of caution: "Even though you are getting this money you need to be responsible. You're still responsible for taxes, insurance and association fees," Giles said.
More Information
The Gay Elders of Southeastern Michigan, formerly known as the LGBT Older Adult Coalition, is working hard to connect seniors in SE Michigan for education, advocacy and networking. The group hopes to become an approved SAGE (Services and Advocacy for GLBT Elders) Chapter. Find out more about the movement at http://lgbtolderadults.com/about/.
For more on the Stonewall Bar Association, go to http://www.michsba.org/. For Nesi and Associates visit http://nesilawyer.com/. For Shelton & Deon Law Group see http://www.sheltondeonlawgroup.com/contacts.html. For Dickinson-Wright go to http://www.dickinson-wright.com/Pages/Default.aspx. And for Findling Law Firm visit http://www.findlinglaw.com/.
