MAKING LEMONADE: Learn how to protect yourself and your family using the resources we do have in North Carolina.
THIS PRESENTATION IS BROUGHT TO YOU BY: ANGELA L. HAAS & JENNIFER THARRINGTON ofANDTHOM NGUYEN of
DISCLAIMER: THIS DOCUMENT WAS DESIGNGED FOR INFORMATIONALPURPOSES ONLY, AND AS A GENERAL REFERENCE WORK. THE READER ISADVISED TO CHECK FOR CHANGES TO CURRENT LAW AND TO CONSULTWITH A QUALIFIED ATTORNEY ON ANY LEGAL ISSUE. THE INFORMATIONCONTAINED HEREIN SHOULD NOT BE CONSTRUED TO BE FORMAL LEGALADVICE, NOR SHALL THE RECEIPT OR USE OF THIS DOCUMENT FORM ANATTORNEY/CLIENT RELATIONSHIP BETWEEN ANY ATTORNEY OR LAW FIRMDISSEMINATING THIS INFORMATION AND ANY RECIPIENT THEREOF.BECAUSE THE INFORMATION CONTAINED IN THIS DOCUMENT IS PREPAREDFOR A GENREAL AUDIENCE, IT DOES NOT CONSTITUTE LEGAL ADVICE, ANDALL RECIPIENTS OF THIS DOCUMENT SHOULD CONSULT WITH AN ATTORNEYPRIOR TO SIGNING ANY INSTRUMENT TO ENSURE THAT HE/SHE RECEIVESAPPROPRIATE LEGAL ADVICE REGARDING THE SPECIFICS OF HIS/HERSITUATION. THERE ARE NO GUARANTEES THAT THE INFORMATIONCONTAINED HEREIN IS ACCURATE, COMPLETE, OR ADEQUATE. THEATTORNEYS AND LAW FIRM OF HAAS & ASSOCIATES, P.A. MAKE NOWARRANTIES AND DISCLAIM ANY AND ALL LIABILITY FOR DAMAGESRESULTING FROM THE USE OF THIS DOCUMENT. THE LAWS IN THIS AREAARE CONSTANTLY CHANGING AND LEGAL ADVICE MUST BE TAILORED TOTHE SPECIFIC CIRCUMSTANCES OF EACH CASE, SO NOTHING PROVIDED INTHIS DOCUMENT/PRESENTATION SHOULD BE USED AS A SUBSTITUTE FORTHE ADVICE OF COMPETENT COUNSEL.
GOT LEMONS? North Carolina has taken a number of steps BACKWARDS recently in the acknowledgement, provision, and protection of rights for LGBT individuals, couples, and families. In the midst of the anger, disappointment, and fear related to the deprivation of equality, many LGBT citizens come to believe that they have no way to protect themselves and their families. The purpose of this workshop is to inform and encourage LGBT people to pursue the options that are still available to them. Don’t let the disappointment turn into apathy. MAKE LEMONADE!
AMENDMENT ONEState Constitutional Amendmentpassed in May, 2012 that makesmarriage between one man and one womanthe only recognized domestic legal union inNorth Carolina.
Since we don’t have access to marriage in North Carolina, wealso don’t have access to divorce (which provides laws forproperty distribution upon dissolution of the relationship). Thismeans that same-sex partners, particularly those who ownproperty together, are often at the mercy of inconsistentjudges and laws that were not designed to address domesticproperty disputes. This can result in bizarre outcomes that areoften unfair to both parties.DID YOU KNOW? Same-sex couples who do not have adomestic partnership agreement may be forced to file aPetition to Partition in order to resolve a property dispute. Theproperty is then allocated based on contribution.
Ok, so we can’t get married in this state(nor will our out of state/country marriages be recognized in this state), what do we do now?
DOMESTIC PARTNERSHIP AGREEMENTA contract between two parties thatsets out each party’s rights andresponsibilities both during therelationship, and in the event that itwere to end.
HOW CAN I GET A DOMESTIC PARTNERSHIP AGREEMENT?IDEAL: Hire an attorney (who is competent in LGBT family law) to draftyour domestic partnership agreement.Better than nothing: Draw up an agreement between the two of youthat addresses the following issues: Who is going to pay for what during the relationship? Who is going to move out if you split up? What is going to happen to the joint property if you split up? This is particularly important with jointly owned real estate. How are joint accounts going to be divided if you split up? (Based on contribution? 50/50?) Make sure both partners sign the document in front of a NOTARY. See Handout # 1
STATE OF NORTH CAROLINA ) ) DOMESTIC PARTNERSHIPCOUNTY OF _______________ ) AGREEMENTTHIS DOMESTIC PARTNERSHIP AGREEMENT (hereinafter referred to as the“Agreement”) by and between ________________________, a citizen andresident of ___________County, North Carolina, and________________________, a citizen and resident of___________County, North Carolina shall become effective as of the date that ithas been executed by each party hereto;WHEREAS, the parties intend to establish a domestic partnership and desire toset forth their agreements and expectations regarding theirfinances, property, and other rights and obligations arising out of their domesticpartnership.NOW, THEREFORE, in consideration of the mutual promises and agreementsherein contained, the parties hereto agree as follows:
NO MORESECOND PARENT ADOPTION In December, 2010, the North Carolina Supreme Court declared second parent adoptions in North Carolina void ab initio in the landmark case, Boseman v. Jarrell.
Ok, so my partner cannot adopt mybiological/legal child in North Carolina. What do we do now?
RECIPE FORSPA-FREE LEMONADE: PARENTING AGREEEMENT AUTHORIZATION FOR HEALTHCARE OF A MINOR JOINT PHYSICAL AND LEGAL CUSTODY STANDBY GUARDIANSHIP (limited) HOLD YOURSELVES OUT AS PARENTS PROPER ESTATE PLANNING PROPER FINANCIAL PLANNING
PARENTING AGREEEMENT A contract between the parents that explicitly states the intent of the parties regarding each party’s rights and responsibilities for the child. Intent of biological/legal parent VERY IMPORTANT (See Handout).AUTHORIZATION FOR HEALTHCARE OF MINOR Authority granted by legal parent for non-legal parent to obtain medical assistance for child.
JOINT PHYSICAL AND LEGAL CUSTODY A court order granting custody to both parties.AUTHORIZATION FOR HEALTHCARE OF MINOR Authority granted by legal parent for non-legal parent to obtain medical assistance for child.
HOW CAN I GET A PARENTING AGREEMENT?IDEAL: Hire an attorney (who is competent in LGBT family law) todraft your parenting agreement.Better than nothing: See Handout #2
STATE OF NORTH CAROLINA____________ COUNTY PARENTING AGREEMENT THIS PARENTING AGREEMENT between PARENT 1 of _________ County, hereinafter referred to as “(FIRST NAME)” and PARENT 2, hereinafter referred to as “(FIRST NAME)”of ___________, County, North Carolina, shall become effective as of the date that it has been executed by each party hereto; W I T N E S S E T H: THAT, WHEREAS, each party acknowledges and agrees that they jointly decided to conceive and bear a child, based upon their commitment to each other and their commitment to jointly parent a child; and
HOW DO I GET AN AUTHORIZATION FOR HEALTHCARE OF A MINOR?IDEAL: Hire an attorney to draft a case-specific Authorization.Better than nothing: See Handout #3
Authorization to Consent to Medical, Surgical, or Dental Examination or Treatment of a MinorI, ________________________, being the mother/father of ____________________,a minor child, do hereby authorize __________________________________ of__________________, _______________, to consent to any X-ray examination, anesthetic,medical or surgical diagnosis or treatment and hospital care to be rendered to said minorchildunder the general and/or special supervision and upon the advice of a physician and/orsurgeonlicensed to practice medicine in any state of the United States, or to consent to any X-ray,examination, anesthetic, dental or surgical diagnosis or treatment, and hospital care to berendered to said minor child by a dentist licensed to practice dentistry in any state of theUnited States.
HOW CAN I GET JOINT LEGAL AND PHYSICAL CUSTODY?IDEAL: Hire an attorney (competent in LGBT family law) to obtain a court order granting joint legal and physical custody to both parents. • An order granting joint legal and physical custody to both parties (while the family is intact) will survive a dissolution of the relationship between the parties.Not recommended: Learn the court process to “do-it-yourself”. Danger...
HOW CAN I GET A STANDBY GUARDIANSHIP?IDEAL: Hire an attorney (competent in LGBT family law) to obtain a court order appointing a standby guardianship. • An order appointing a standby guardianship only applies in certain situations.Not recommended: Learn the court process to “do-it-yourself” (if applicable). Danger…
HOW DO WE HOLD OURSELVES OUT AS PARENTS? In addition to NOT INSTEAD OF obtaining legal custody and executing a parenting agreement, hold yourselves out to family, friends, service providers, the child, and the public as the child’s parents. Although the Boseman opinion struck down second parent adoptions, it also ratified and strengthened custody rights for same sex parents. There is no conclusive test for what actions by the parties are sufficient to establish standing for the non-bio/legal parent to petition for custodial rights, but engaging in all or most of the following has proven to be persuasive to the court:
• Holding yourselves out to medical providers, educational providers, clergy members, and other professionals as parents.• Both parties participating in choosing donors, surrogates, adoption agencies, physicians, etc. Choosing a donor that has the physical characteristics of the non-bio parent.• Both parties participating in prenatal appointments, decorating the nursery, and other preparations prior to birth/adoption.• Presenting yourselves as parents at religious ceremonies/baptisms, birthday parties, and other special events.• Sending out birth announcements, holiday cards, and other correspondence representing two parents and the child/children.
• Editing forms that ask for “mother” and “father” and inserting both partners’ names as parents.• Holding yourselves out to the child as parents.• Having the child’s name reflect both parties’ names.• Encouraging the child to develop and maintain family relationships with both parties’ extended families.• Encouraging the child to celebrate both parties on Mother’s Day or Father’s Day.• Both parties contributing to the physical, emotional, and financial support of the child.• Both parties engaging in joint decision-making regarding the child.
STATE & FEDERAL LAWS State and Federal Laws which apply to married couples, most likely do not apply to you! • Distribution of property (upon dissolution of relationship) • Children • Management of property and person (upon incapacitation) • Distribution of property and body (upon death)
Since we don’t have access to marriage in North Carolina, wealso don’t have access to spousal rights (which provides lawsfor managing our property and health care needs uponincapacitation). This means that same-sex partners who havenot properly executed a Power of Attorney(s) will be at themercy of state laws. This may result in very detrimentalunintended consequences.DID YOU KNOW? If you have not properly executed aDurable Power of Attorney, your biological/adopted familymembers will be considered first as the persons havingauthority to manage your property and to make health caredecisions on your behalf (including to exclude your partner) ifyou become incapacitated. Court proceedings will berequired to attempt to overcome their preferential status.
Since we don’t have access to marriage in North Carolina, wealso don’t have access to spousal estate rights (whichprovides laws for property distribution upon death). Thismeans that same-sex partners who have not properlyexecuted their Wills will be at the mercy of state laws. Thismay result in very detrimental unintended consequences.DID YOU KNOW? If you have not properly executed a Willthat states otherwise, at your death, your property will bedistributed to your biological/adopted family members (or thestate) only.
Ok, so when the state and federal laws do not apply to us, what do we do now?
RECIPE FORCOMBAT LAW LEMONADE:COURT ORDERS / AGREEMENTS RELATED TO PROPERTY DISTRIBUTION AND CHILDRENPROPER ESTATE PLANNINGPROPER FINANCIAL PLANNING
PROPER ESTATE PLANNING Plan for your incapacitation and/or death… one or both is guaranteed to occur!!
Ok already, so I may become incapacitated,and I am guaranteed to die, what do I do now?
RECIPE FORESTATE PLANNING LEMONADE: Property/Partnership Agreements/Orders Estate Planning Documents • Durable Power of Attorney • Health Care Power of Attorney • Living Will • Last Will & Testament • Trusts Proper Financial Planning
DURABLE POWER OF ATTORNEY A legal document that grants authority for another to manage your financial affairs during your life (before, during, and/or after incapacitation). May be general or limited.HEALTH CARE POWER OF ATTORNEY A legal document that grants authority for another manage your health care needs during your life (before, during, and/or after incapacitation. May be general or limited.
LIVING WILL A directive given by you directing another as to the life-saving measures you direct to be taken (or not) near the end of your life. This may be incorporated a part of a Health Care Power of Attorney.
LAST WILL & TESTAMENT A document providing for what happens to one’s body and property after his/her death.TRUST DOCUMENT A contract between two parties that sets out each party’s rights and responsibilities as to property during life and/or at death. The “parties” can be the same person as “grantor” and “trustee”. Trust may be amended (or not).
HOW CAN I GET A DURABLE POWER OF ATTORNEY?IDEAL: Hire an attorney (who is competent in LGBT estateplanning) to draft your Durable POA.Better than nothing: See Handout # 4
NORTH CAROLINA GENERALCOUNTY OF ____________ POWER OF ATTORNEY ARTICLE I APPOINTMENT I ________, appoint ________ to be my attorney-in-fact, to act in my name in any way which I could act for myself, with respect to the following matters as each of them is defined in Chapter 32A of the North Carolina General Statutes. (DIRECTIONS: Initial the line opposite any one or more of the subdivisions as to which the principal desires to give the attorney-in-fact authority.) (1) Real property transactions ..................................................................._________ (2) Personal property transactions ............................................................_________................ _________
HOW CAN I GET A HEALTH CARE POWER OF ATTORNEY?IDEAL: Hire an attorney (who is competent in LGBT estateplanning) to draft your Health Care POA.Better than nothing: See Handout # 5
HEALTH CARE POWER OF ATTORNEYDesignation of Health Care Agent.I, __________________, being of sound mind, hereby appoint the followingperson(s) to serve as my health care agent(s) to act for me and in my name(in any way I could act in person) to make health care decisions for me asauthorized in this document. My designated health care agent(s) shall servealone, in the order named.A. Name: _______________________ Home Telephone: _______________Home Address: _______________________ Work Telephone: ___________________________________________________ Cellular Telephone: _______________B. Name: _______________________ Home Telephone: _______________Home Address: _______________________ Work Telephone: ___________________________________________________ Cellular Telephone: _______________
HOW CAN I GET A LIVING WILL?IDEAL: Hire an attorney (who is competent in LGBT estateplanning) to draft your Living Will (or to include it in your Health CarePOA).Better than nothing: See Handout # 6
ADVANCE DIRECTIVE FOR A NATURAL DEATH (“LIVING WILL”) My Desire for a Natural Death I, , being of sound mind, desire that, as specified below, my life not beprolonged by life-prolonging measures: When My Directives Apply My directions about prolonging my life shall apply IF my attending physician determines that I lack capacity to make or communicate health care decisions and: NOTE: YOU MAY INITIAL ANY AND ALL OF THESE CHOICES. ______ I have an incurable or irreversible condition that will result (Initial) in my death within a relatively short period of time.
HOW CAN I GET A LAST WILL & TESTAMENT?IDEAL: Hire an attorney (who is competent in LGBT estateplanning) to draft your Last Will & Testament.Better than nothing: See Handout # 7
Last Will and Testament of ______________________________________I, ______________________, of _________________,hereby make, publish, and declare this to be my Last Will andtestament and revoke all previous wills and codicils made by me.Section 1. Identification of Family1.01 My partner’s name is _________________________.All references in this will to my partner, whether or not specificallynamed, shall mean only my partner, ______________________.1.02 I have (no) living children or issue.
HOW CAN I GET A TRUST DOCUMENT?Hire an attorney (who is competent in LGBTestate planning) to draw your TrustDocument(s). The type of trust document(s) willdepend on your goals as to property distribution.Consult your attorney and/or financial plannerabout your options.
LEMONS FROM PERSONAL FINANCESYour Domestic Relationship lacks many of the legal safeguards of MARRIAGE. If the relationship ends, no divorce court or uniform guidelines exist to separate your shared assets. If you incur joint debt with your partner, you are both fully responsible for the entire amount. Your partner could drain the funds from the joint account.
RECIPE FOR MONEY LEMONADE: SEE HANDOUT # 8 Have an honest and frank conversation of your financial values, priorities, and goals before deciding whether to handle your finances separately or as a couple. Estimate Your Net Worth separately or as a couple. Prepare a BUDGET. Weigh the options before obtaining joint accounts. Get a DOMESTIC PARTNERSHIP AGREEMENT.
PLANNING FOR RETIREMENT LEMONSAs a domestic partner, you are NOT eligible for spousal benefits from two key sources that many married partners depend on: Social Security and Medicare. It is always possible that your relationship could end before retirement. Some companies, union and pension plans do not extend automatic survivor benefits to a domestic partner from his/her deceased partner.
RECIPE FORRETIREMENT LEMONADE: Decide to plan retirement separately or as a couple. Increase your level of savings. Use life insurance to fund your partner’s retirement. Designate your partner as the beneficiary for your retirement plan and life insurance plans. Get a DOMESTIC PARTNERSHIP AGREEMENT.
TAX CONSEQUENCE LEMONS Unlike married couples who can gift property between each other with no tax consequences, non-married persons who change the title of their real property to “joint tenants with rights of survivorship” may avoid probate, but the change may also involve making a taxable gift according to the IRS if the value of the interest conveyed exceeds $12,000.00. As partners, you CANNOT file a “married filing jointly” or “married filing separate” return for taxes. Unlike individuals who were once married, spousal support between domestic partners is not deductible and may incur gift tax consequence if the annual amount exceeds $13,000.00 (the current cap).
RECIPE FORTAX LEMONADE: Investigate the availability of joint and survivor benefits for your partner. Investigate the options of creating a trust. Standard and itemized deductions can be filed by one or both partners. Get a DOMESTIC PARTNERSHIP AGREEMENT.
“An ounce of prevention is worth a pound of cure”• (aka, 1 hour now can save 100+ hours later)• (aka, $1,000 now can save $10,000 later)
Prevent:• Undesired outcomes• Emotional burden to partner/family• Financial burden to partner/family
Participate:• Get your individual/family finances in order• Learn about who does what in office & Vote• Volunteer time/money to LGBT supporters/projects• Share what you know• Use what you know• Share your story