Why Every LGBTQ Couple Should Have Powers of Attorney

While California is one of the most progressive states when it comes to recognizing LGBTQ relationships and equality, the vast majority of laws on the books still cling to very old-fashioned traditional views. For example, if you are incapacitated and need emergency medical treatment, hospitals will generally defer to your biological relatives over your romantic partner. As a result, your partner could be locked out of your hospital room and blocked from accessing shared financial resources.

Fortunately, LGBTQ people can create customized estate plans for emergencies by granting your partner Powers of Attorney. At Kushner Legal, our Beverly Hills LGBT estate planning attorney team has years of experience helping couples across the state ensure their chosen family makes important decisions when disaster strikes. Contact us today for a completely confidential consultation.

What Is a Power of Attorney in California?

A Power of Attorney is a set of forms that lets you appoint a trusted individual (your agent) to handle important affairs if you become incapacitated. For example, you could be incapacitated by being involved in a car accident that renders you unconscious, or you could slowly develop a mental health condition over decades. These forms are:

1. Advance Health Care Directive. This Directive tells medical providers and loved ones about your healthcare preferences if you are incapacitated and thus incapable of legally speaking for yourself. Furthermore, you can appoint an agent to make healthcare decisions that are not explicitly provided for in the Directive.
2. Durable Power of Attorney. By granting Powers of Attorney, you name an agent that can make financial and legal decisions if you become incapacitated. For example, if you are seriously injured and can no longer run your business or pay your bills, your agent can step in to manage your finances until you regain capacity.

What Happens If I Become Incapacitated Without a Healthcare Directive?

If you are legally incapacitated, that means you do not have the legal ability to make important decisions. Without a healthcare directive, California’s default laws apply. In the short term, such as if you are seriously injured and rendered unconscious, emergency medical providers will look to your closest living relatives to make immediate decisions. In the long term, even distant or estranged relatives can petition the court to establish a legal conservatorship over you. The process is highly public, and private details can become public record. Ultimately, a judge decides who gets to make important decisions for you.

If your partner wants to fight for the right to make decisions for you, they will have to hire a private litigation attorney. They have no automatic right to make critical choices without a Healthcare Directive and/or a Durable Power of Attorney. This can drain life savings and delay critical medical decisions for months.

Which Legal Documents Give My Partner Financial Control?

A Durable Power of Attorney is the legal document that gives your partner or trusted friend authority to manage your money, investments, and property. This document remains fully effective even if you suffer a severe brain injury, fall into a coma, or develop severe dementia down the road.

Your estate planning documents can be highly customizable to your exact situation. You can grant your chosen family broad authority over all your financial assets, or strictly limit their power to specific actions. To fully protect your household and maintain your lifestyle, you should ensure your financial agent has the legal clearance to perform the following actions:

• Access personal, business, and joint bank accounts.
• Pay your daily bills, mortgages, and utility invoices.
• Manage your retirement portfolios and investment accounts.
• File local, state, and federal taxes on your behalf.
• Deal directly with your health insurance providers to dispute claims.
• Collect your mail and manage your safe deposit boxes.

Frequently Asked Questions (FAQs) from LGBTQ Couples

Can an unsupportive family member override my partner’s decisions?

If you worked with a highly experienced West Hollywood LGBT estate planning attorney to draft a thorough, ironclad estate plan, unsupportive family members have no automatic right to override your partner’s decision (or whomever else you designate as your agent).

Under California law and in the vast majority of other states, hospitals and financial institutions must respect the appointments you have made in your Durable Power of Attorney and Healthcare Directive. This keeps estranged relatives out of the decision-making process.

How often should we update our estate planning documents?

Review your Powers of Attorney every three to five years, or immediately after any major life event. Significant life changes, such as getting married, buying a new home in Beverly Hills, receiving a large inheritance, or falling out with your current agent, require you to update your legal documents promptly.

Can I revoke a Power of Attorney if my relationship ends?

Yes, you can absolutely revoke or amend your Durable Power of Attorney and other estate planning documents if your relationship ends. In most cases, you can do this by destroying the old documents, creating a new legally binding directive that explicitly invalidates prior directives, and providing your updated paperwork to healthcare providers, your new designated agent, your attorney, and/or financial institutions.

Are out-of-state Powers of Attorney valid in California (and vice versa)?

Generally, states will recognize Powers of Attorney that were legally executed in other states. For example, if a California resident is seriously injured in Nevada, Nevada hospitals will generally recognize a California-compliant Durable Power of Attorney.

However, if you moved to California from another state and your Durable Power of Attorney and Healthcare Directive, etc., were drafted to meet your old state’s requirements, you should update them. Local hospital administrators and bank managers are likely unfamiliar with your old state’s legal requirements. Old estate planning documents can create unnecessary delays or lead to court battles.

Kushner Legal Helps LGBTQ Couples in California Plan for the Future

Do not let outdated cultural norms or default rules control who gets to make important decisions for you. Contact Kushner Legal today to schedule a consultation and protect yourself and your chosen family.