Five resolutions for LGBT legal health in 2011

It’s tradition - a new year calls for a review of the past and resolutions for the future.

Why should the LGBT community make a special effort to be in good legal health? Because we do not always share the legal safeguards and support offered to heterosexuals by the state and federal government. It takes careful planning and creative thinking to make sure LGBT persons are fully protected.

Here are some tips that will help bring you good legal health in the new year:

Protect yourself and your relationships. If you have a partner, and you have not married, consider becoming registered domestic partners, or entering into some form of agreement with each other to protect your relationship. Without these types of agreements, you and your partner are legal strangers.

California recognizes marriage and domestic partnerships between same-sex couples, but most other states still do not accept these as legal arrangements. If you travel or work outside California, you will definitely need powers of attorney, health care directives and other documents to protect yourselves.

Resolution: Design the financial, estate planning, and health care documents that will protect each of you and your relationships for whatever the future brings.

Minimize tax headaches. California requires LGBT couples who are married or registered domestic partners to file joint tax returns. But the federal government does not recognize these relationships, so same-sex couples must file single returns for the IRS. This means that multiple tax returns must be prepared, and time and costs of preparation can be much higher for couples in the gay community than for heterosexuals.

The real headache is the time required to separate the income from joint assets and from separate assets, such as bank accounts, businesses and sale of securities. Expenses such as medical insurance, mortgages and property taxes must be split, too. If there are children, it is very difficult to decide which partner will take the allowable deductions, especially if they are related by blood to only one partner but the other is providing a majority of the support.

Resolution: Discuss your financial situation with your attorney and with your tax preparer so that your finances can be arranged in the most logical way to meet the complex rules of joint and single tax returns.

Plan for disability. No one likes to think about incapacity or death, but the fact is that most of us will be incapacitated at some point in our lives. Incapacity without important legal protections in place can lead to very complicated and often, very sad issues for you, your partner or your family.

At a minimum, you will need a General Durable Power of Attorney which gives your partner or other responsible person authorization to act as your agent for your personal and financial affairs; and an Advance Health Care Directive which states your personal wishes for the type of medical care you wish to receive, and authorizes your partner or other person to act on your behalf with respect to your medical care.

Resolution: Review your family and personal relationships with your attorney, and have the necessary legal documents prepared to protect you in case of disability.

Plan for long-term care. We now know that a majority of us will need nursing home care at some time in our lives, and at least 40% of us will need long term care before we pass on. Medicare does not pay for long term care in any kind of care facility.

MediCal may cover long term care, but only for those who have completely exhausted their assets (with allowance for spouses who may retain a residence to live in). For most of us, there is no government program to support long term care of any kind.

Resolution: Review your financial situation with your attorney to begin planning for long-term care insurance, a MediCal trust, or various other options to preserve your assets and protect yourself and your partner if and when you require long-term care.

Plan for your pets. A pet is just like family, to many of us. But we rarely stop to think about what happens when its owner becomes incapacitated or dies. It is possible that a pet will be euthanized if the owner didn’t provide legal protections for its care. Pets are property, so you can’t leave money directly to them, but you do have other options to make sure your pet is well cared for.

You might leave money to a caretaker, or set up a pet trust to fund the care of your pet if something happens to you. There are many ways to make sure your pet will be treated well.

Resolution: Plan your pet’s future with your attorney, and design the documents that will give it all the legal protection it deserves as a member of your family.

This article is part of an ongoing series of articles pertaining to legal issues in the LGBT community. Previous articles can be viewed at heritagelegal.com. This information is intended for general information purposes only, and is not intended to provide legal advice. Christopher Heritage is an attorney in Palm Springs, and San Diego, CA, who focuses on LGBT estate planning, domestic partnerships, same-sex marriage, probate, trust administration, and consumer bankruptcy. He welcomes questions and comments, and can be contacted at 760.325.2020, or by email: chris@heritagelegal.com

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