Civil Unions Likely to be Recognized Soon

 

Civil Unions are most likely coming to Colorado!  You can watch a video by Michael Valdez, Director of Legislative Relations at the Colorado Bar Association about the Judiciary Committee approval of SB 13-11 here .  The Colorado Bar Association supports the bill.  The bill has passed the Senate Committee and is very likely to become law.  Read more here.    This is an important development for civil rights and has important ramifications for estate planning and elder law for same sex couples.  The big picture of rights of same –sex couples in the United States is in a major state of flux right now.  Voters approved gay marriage ballot measures in the 2012 election in Maryland, Washington and Maine.   The U.S. Supreme Court will be examining the constitutionality of the (federal) Defense of Marriage Act (DOMA)as a result of the rulings by U.S. Courts of Appeal  (the First Circuit in Boston and the Second Circuit in New York)  that portions of the law are unconstitutional.  What will be interesting from the historical perspective is that the “state rights” reliance, used by southern states to continue segregation in the 1950’s and 1960’s will likely be the undoing of the DOMA.  Such a ruling by the Supreme Court would result in a major change in federal benefits and tax treatment of same sex marriages, but will still leave a checkerboard of state laws regarding whether a same-sex couple can be married.  Right now there are a variety of laws among the states that address marriage, civil unions and domestic partnerships for same sex couples.  Read an article by a Vermont law school professor about that here.

You can read “A Bill for an Act Concerning Authorization of Civil Unions”  (SB 13-11) here.    The bill specifically states that “the rights, benefits, protections, duties, obligations, responsibilities and other incidents under law that are granted or imposed under the law to spouses apply in like manner to parties to a civil union” and includes many provisions – of particular interest for me are the probate laws regarding decedent’s  estates (intestate succession, wills and trusts) as well as “living” probate proceedings such as guardianship and conservatorship matters.  And yes, those who are united in civil union will be subject to the same processes such as dissolution, legal separation and declaration of invalidity as pertain to marriage.

This will obviously be a major improvement for committed same sex couples over the current Colorado law, which includes the Designated Beneficiaries Act.  You can read my article about it here.    Keep in mind that the Designated Beneficiaries Act and a Designated Beneficiaries Agreement is available to two persons who are unmarried, a very broad group of individuals.  I will post updates in the future on these important state and federal developments.

Funerals and the Meaning of Life

I went to my Uncle Frank’s inurnment today at Fort Logan.  A Korean War veteran of the Navy, he served for many years as commander of the Wilmore-Richter American Legion Post 161 in Arvada.  The Legion is an amazing community and the turnout was huge.  I commented to my cousin that all of them are also his family, they were his community for so many years.

So what is a funeral anyway?  It is a rite of passage of course, that others make possible for the deceased.  In Jewish tradition , it is an honor to shovel the earth over a casket because the person for whom one does the shoveling cannot so to speak “return the favor.”  This is a reminder that there are many things in life we do for others that they perhaps could not do for themselves.  Sometimes we are motivated by compassion or empathy, thinking “I would want someone to do the same for me if I were in that situation.”   Other times we just do things for no reason except that it is the right thing to do, and we most likely feel good about doing it.

This takes to me the essence of community in the funeral context – going beyond the transactional aspect of life, or a social bargain based on a tit-for-tat, scorekeeping or checklist sort of assessment of a person’s life.  How often do we hear about a bucket list . . .  whose bucket list is it anyway?    When a person dies and survivors grieve and mourners mourn, we feel the loss of that person as an individual and as a member of our community.   This love that causes the grieving is proof of the existence of life and relationship, I think this is the real proof that someone lived and was loved.  Whether you have a belief or disbelief in an afterlife, grieving is proof of love, proof that someone touched your life in a way that can be felt and reckoned only by the heart.  The love never dies, it most definitely has an afterlife.

A funeral, memorial or celebration of life causes us to slow down and reflect on that person’s life and our own lives as well and to look for meanings in our lives as we construct meaning for the life of the deceased.  This aspect of funerals is the same across the globe.   Okay Barb, but The Meaning of Life? Surely I’m referring to the Monty Python film . . .  I am after all a ” huge fan of their work.”  I was thinking about the three family members whose cremains are at Ft. Logan and also about all those baby boomers reaching a “certain age.”  What will the meaning of the passing of the huge numbers of baby boomers mean for our children and grandchildren.  Will it be any different from that of the Greatest Generation or the Silent Generation.  Undoubtedly it will.  Is up to the deceased to make meaning of their own life?  I think not, that is the task of the living.  It does give the living, the surviving community and family members an invaluable opportunity for reflection.  This reflection can operate on many levels: It reminds us of our own mortality and the fragility of life; it can focus our attention on the time we have now and not leaving unsaid those things we might regret leaving unsaid (there are Dr. Byock’s four things I have previously blogged about, among other conversations); we have an opportunity to adjust our self-identity and to “be” in ways that are new and sometimes challenging indeed.

A funeral is a rite of passage for everyone, all the survivors – if we simply stop to take some time to reflect and ask some questions.  For most people, these are not easy questions to discuss, but in my work as an estate planning attorney, one of the questions I ask concerns funeral arrangements.

Will That Representation be Separate or Joint?

 

Attorneys represent individuals, couples, business, families, corporations – among other clients.  One of the types of representation that is common among elder law attorneys is joint representation for a couple (husband and wife or unmarried couple), but many times an elder client might be brought in by an adult child or a caregiver.  This can be because the elder wants a companion, doesn’t drive anymore or has physical mobility challenges, or it could be due to reasons having to do with cognitive functioning.  The purpose of this blogpost is to give a brief overview of a couple different types of representation from an elder law perspective.

Representation of an Individual

The example I use here will be one of an elder parent who relies on an adult child or children for assistance with some activities.  I use this example because it is a relatively common scenario in elder law that many people may not be aware of.  Sometimes there may be a question about who the lawyer will represent and for what purpose.  The American Bar Association has a helpful flyer here that explains why it is standard practice for elder law attorneys to interview an elder separately.   This may be difficult for an adult child who is involved in so many aspects of a parent’s life, but it is consistent with the attorney’s requirements of acting within the Colorado Rules of Professional Conduct, the ethics rules to which all licensed Colorado attorneys must adhere.

Sometimes the elder who executes a durable power of attorney (POA) may wish to have their agent under the POA– either a general (financial) or a health care POA educated about the duties they will be performing in the event the agent must act on behalf of the elder principal.  a consult with both the principal and agent about the “job description” – fiduciary responsibilities, how the agent will be expected to perform in the financial POA context, as well as the stated and understood desires of the principal as to medical treatment and preferences for an agent acting under a health care POA.  This inclusion of the agent under a POA at a meeting with the elder principal does not mean that the attorney is “representing” the agent as well.  It is the attorney’s responsibility to make clear so that both principal and agent understand the nature of the representation.  Estate planning and many aspects of elder law are relatively nonadversarial in nature, and it is often the stated wish of the principal, consistent with their own interests, to have the agent “on board” with the expectations of how the principal expects the agent to act.  Indeed, educating an agent about their fiduciary responsibilities can be a powerful tool that can make the use of the POA easier and also prevent inadvertent mismanagement or neglect of an agent’s duties.   This is understandably in the principal’s interest, and is often an available option.  In the medical POA context, an elder principal’s clarification of their stated wishes, along with discussion among the adult child or children who will act as agent(s) in the event that a medical professional determines a principal is unable to give informed consent to treatment.

It is the responsibility of the attorney engaged by the elder to explain in these circumstances the nature of the meeting among the principal and the agent(s) so that it is clear to all those in attendance what the nature of their relationship with the attorney entails.

Joint Representation

In some circumstances, it is desired and may be appropriate for the attorney to represent more than one party.  Typically this is joint representation of a couple, but it may also be “multigenerational” representation – which is much less common and generally narrow in scope.

The majority of married couples and committed partners engage in joint estate planning.  The attorney typically explains the potential for conflict in such a representation and obtains written consent for such representation after explain conflicts of interest that may arise in such representation and the circumstances under which an attorney may continue to represent the parties and those in which she may not.

Joint representation may be problematic for some couples, particularly in a second (or later) marriage or blended family scenario.  Sometimes asking the questions about how the representation will proceed may point to underlying areas of conflict.  Here’s a link to a helpful Forbes article by Deborah Jacobs, “Estate Planning for Couples: Should It Be a Solo or a Duet?”  (This is a guest post by Paul Hood and Emily Bouchard, co-authors of Estate Planning for the Blended Family.)

I’ll write more about this topic again.  It is an important one that shows up in different elder law contexts.