Personal Care Estate Planning


Our guest co-author is Estate Planning Attorney, Rhonda Brink. Rhonda enjoys current membership on the Planned Giving Advisory Council of the University of Texas. Her professional credentials, publications and activities are extensive. She is supported in her efforts by her husband of twenty-seven years, Robert L. Green, Jr., and three children: Brian, father of her first grandson; Lynn, student of veterinarian medicine at Texas A&M; and high school junior, Leslie. She enjoys, time permitting, weekend farming at “The Brierpatch” in Burleson County, Texas.

“For better or for worse, for richer or for poorer, in sickness and in health…” – all of us know these words, and for some, they are bittersweet. Regardless of your sexual orientation, your level of wealth, status of your health, or for that matter, the color of your hair – you need an effective estate plan. For many, estate planning simply means “writing a Will.” In truth, estate planning is more than a Will. While a Last Will and Testament is the foundation of an estate plan, estate planning is a process involving the accumulation, management and disposition of wealth as well as planning for the support and care of yourself, your companion and your children, if any. In this article we explore the personal care side of estate planning which means having input as to whom will make the important decisions of your personal care in the event you are unable make those decisions for yourself. Flip the magazine and we will explore the asset and financial side of estate planning.

There are no such things as “straight” and “gay” estate plans. The needs of gays and lesbians are not novel; it is just up to you and your estate planning counsel to apply traditional tools to meet your special needs. Domestic partners currently have the most special of those estate planning needs because there may be no legal status assigned to your relationship with a partner and no legal document to determine the beginning or end of such a relationship. California has taught us that the laws concerning marriage of persons of the same sex are confusing and unreliable. Additionally, our relationships are truly no different as they will either end in separation or death, just like married couples. Proper estate planning affords us the opportunity to prepare for these two events in advance.

Lesbian couples, as with straight couples that are not married, can either ignore these facts or deal with them. In the personal care side of estate planning, documents are drafted to that you can name whomever you chose to be your agent under a medical care power of attorney or a guardian of yourself and/or your children. As we don’t have the recognition benefits afforded under marriage, these documents need to clearly state how we define our partners and partnerships. Without these documents in place, families and courts are left to define these relationships for us. Remember the case of Terri Schiavo?

There are three general methods you and your attorney can utilize as to how your partnership sat us is to be determined:

1.) have a third party or committee determine status, perhaps in a binding mediation or arbitration;

2.) determine status by reference to similar marital laws, such as “if we are married in one jurisdiction that recognizes our marriage, we will treat ourselves as married in Texas, unless the marriage is ended under the other state’s law”;

3.) by a factual determination made by defining cohabitation (with appropriate exceptions for separations, for example, for health or institutional care).

Now that we have the steps in place to help determine whether or not you are in a recognized partnership, we can discuss the different personal care documents you may need to have in place. These documents include:

▪    a durable general power of attorney which authorizes the agent you select to handle your financial and legal affairs;

▪   a health care power of attorney to evidence your choice of persons responsible for decisions concerning your health and personal care in the event you are unable to make choices for yourself;

▪   a living Will to make known your feelings about artificial life support measures in the event of terminal illness;

▪   a guardian declaration which indicates your choice a guardian declaration which indicates your choice of guardian of the person and guardian of the estate;

▪   the appointment of an agent to decide how your remains are disposed of at death and who should be responsible for the decision.

And, then the most important decision of all – if you have children, your estate plan will determine who will raise your children if they are minors and who will be responsible for the financial security and investment of your children’s inheritance.

Whether we like it or not, life happens. Decisions will be made. Don’t you want to have some input in that process? Why would anyone let these intimate personal decisions be made by others – especially by a judge that does not know your needs or by a family that may not recognize them?