There was an interesting article in the New York Times discussing the issues that a lesbian couple in Beverly Hills, Michigan had in trying to create a family.  As the article indicates, Michigan does not allow same-sex couples to perform second parent adoptions, which would allow one partner to adopt the other’s biological or adopted children.  However, Michigan recognizes second-parent adoptions performed elsewhere.

This inability, in Michigan, to adopt, is just one of many legal and financial hoops that same-sex couples must jump through.

The article lays out some of the chief issues same-sex couples must address and many of it through legal documentation.  One of the first key documents is a parental authority document establishing the ability of both parents to have legal authority to act as parents.

Additionally, last wills and testaments must be updated to ensure there is guardianship and co-parenting rights if one of the parents were to pass away.  It’s important to establish the legal authority before any blood relatives.

Often times it is important to have revocable living trusts in place to manage any property if one of the parents were to pass away.

Obviously, the couple also needs incapacity documents establishing each other as patient advocates and to receive HIPAA authorizations so that each can receive medical information on the other.

To read more on the recommendations, read the NYTimes article here.

The financial durable power of attorney is a document that appoints an individual to manage financial decisions for you.  The power of attorney, too often is an afterthought in the eyes of clients (and even sometimes, attorneys).

Typically the power of attorney is set up to be “springing”, what this means is that when you become incapacitated the power of attorney “springs” into effect and the person you’ve appointed to serve as agent-in-fact now has legal authority to make decisions.

The alternative route is that the power of attorney becomes effective immediately.  The advantage of this is that the named agent-in-fact does not need to wait on the disability provision of the document to trigger.  Typically a “springing” power of attorney will have a provision that it does not become effective until two licensed physicians sign off  to say that the creator of the document, called the “principal”, is incapacitated.  For example if a spouse was traveling, the agent-in-fact spouse would not be able to sign for the principal spouse because the disability trigger had not been switched on.

The power of attorney is a powerful document and its important to understand the differences between a springing power of attorney and one that is effective immediately.  If you have questions on the differences, its important to talk to a Michigan estate planning attorney.

As a Oakland County wills, trusts, and estates attorney, I understand the importance of a well drafted durable power of attorney.

A power of attorney is a complex document granting another person to act as, what we call in the legal field, “agent-in-fact.”  In other words, the person you appoint in the power of attorney can make the decisions that you would normally make.  The powers granted may be as broad or as narrow as the principal and the drafting attorney make the document.

The power of attorney is a key and often overlooked document in any type of Michigan estate plan or elder law life care plan.  Handling the affairs when an individual is incapacitated is nearly impossible with out.  If you don’t have a power of attorney in place you may have to trot off to Oakland county probate court, Wayne county probate court, or Macomb county probate court.

With Michigan Estate Planning, there are a few basic things that you need to know.

First, no matter what your net worth is, how much in assets you have, how much debt you have, you need an estate plan. In Michigan, once you turn 18 you are legally an adult. So, even if you’re a college age adult who lives at home with your parents, there is a certain level of estate planning that should be done. That is you need, what our office calls, a disability plan. A disability plan plans for your disability or incapacity.  We would put together a Patient Advocate Designation (which is the Michigan equivalent to a health care power of attorney), HIPAA Authorization, and a Financial Power of Attorney that most likely would name your parents as decision makers and agents.

Now that we’ve established that if you’re over the age of 18, you need the disability documents, the next step would be once you have assets (now matter how meager) or children, it is important to plan for your assets and children.  This is done through using Revocable Living Trusts and Last Wills and Testaments.  Whether you opt for a Living Trust based estate plan or a Will based estate plan will depend on your goals.  Remember a Last Will and Testament only gives instructions to the Michigan Probate court on how to administer your estate, it does not avoid probate.

Lastly, it is important to consult a Michigan estate planning attorney in preparing your estate plan.  Proper Michigan estate planning involves more than buying Nolo Willmaker software or reading the latest Suze Orman Trust Kit book.  It involves analyzing your goals and situation and using the estate planning tools we’ve discussed in the most effective and cost effective way.

Talking to Loved Ones about What Really Matters

“The Holidays” can mean travel, excitement, gathering together with those you love, stress, conflict, and any or all of these things.

We wish you the happiest of holidays.

We also urge you to take the time this holiday season to talk with those you love about what’s truly important to you, and what’s important for them to know.  Make sure you tell them that you love them.  Make sure you tell them about your estate plan, about where they can find your important legal and financial documents in an emergency, and who your important advisors are (e.g. estate planning attorney, financial advisor, accountant).  We understand that these conversations with family members can be difficult to start.  But they are important.  Talk to those you love about the legal, financial and health care decisions you have made, and take the time, while you still can, to explain your choices.

Talking about your healthcare directives can also be a good lead-in to talking about your other personal and financial choices with those you love.  It’s important — for you and for them.  Take this extra step to ensure that everyone knows what you want while you can still answer questions and provide feedback.  And then eat a lot, have a wonderful time, and enjoy your holiday!

I was in Troy, Michigan giving an estate planning presentation when someone in the audience asked “whether he should be on a joint account with his parents to aide them in paying their bills?”

My answer was that there is a better way to go about things utilizing a Michigan financial durable power of attorney.  With a financial power of attorney in place naming the son as agent-in-fact, he would be able to aide his parents with their bill paying and finances while protecting his parents from creditor claims against himself and providing the parents the peace of mind knowing that the son owes the parents a fiduciary duty.

If you have named anyone other than your spouse jointly on a bank account or deed, you may be opening up a can of worms.  Feel free to contact us if you are in this situation, as there may be a better way to handle it.

Tuesday, October 6th, I will be presenting again on Michigan Estate Planning in Troy, Michigan in the afternoon.

-Christopher J. Berry, Esq., A Troy, Michigan Wills and Living Trust Attorney, is a Partner with The Law Offices of Witzke Berry PLLC, which practices in the areas of Troy Estate Planning, Troy Michigan Medicaid Planning, and Troy Michigan Probate Litigation, serving Metro-Detroit and Oakland County, Macomb County, and Wayne County.  We can be reached at 248-971-1700