Seven documents will protect your family no matter how the Supreme Court rules
REBECCA COVELL | contributing writer
On June 26, 2015, there was dancing the streets because the U.S. Supreme Court declared in Obergefell that marriage is a fundamental right, and all states are required to grant and recognize same-sex marriages.
Joyous couples across the country (including Texas) married and, contrary to all conservative chicken littles, the sky did not fall. Indeed, marriage continues to be a personal choice between two people that is celebrated by their family and friends and sanctioned by every state in the Union. According to a recent Gallup poll 71 percent of Americans support same-sex couple’s right to marry.
Despite such widespread support, seven years later the court and country are changing. Now, a conservative majority on the court and vocal conservative minorities holding key political office in red states are suggesting Obergefell was wrongly decided.
In response, the U.S. House passed the Respect for Marriage Act with wide bipartisan support. It is pending in the U.S. Senate where its passage requires 10 Republicans to join all Democrats to make it law. If it does not pass and Obergefell is overturned, each state will decide whether it will recognize same sex marriages. Like the fallout from the U.S. Supreme Court overturning the constitutional right to abortion, the ensuing chaos will be indescribable.
So what’s a concerned couple of Texans to do in view of all this confusion and uncertainty? VOTE. Never in the history of our movement has it been more important to vote for candidates who support us. If fair minded politicians win statewide elections (which is actually a REAL possibility this fall) it would be a new day in Texas. Voting for and electing fair minded judicial candidates ensures our rights will not be lost or diminished. So register to vote then actually VOTE as if your rights depended on it because they do.
In the meantime, everyone, regardless of their coupling status needs to have essential legal protection provided by Texas law. These rights would not be affected by the changing tides of legal marriage. They are the Significant Seven.
First, you need a will. And not one you found on the internet. Think of a will as a parachute: You only need it once, but you sure want it to work. Get it done right by an attorney who does estate planning. In your will, you may designate how all your property is distributed and you choose who executes the will. Without a will, you and your longtime partner are legal strangers.
Next, you need a business power of attorney agent to manage things while you’re alive. That requires a statutory durable power of attorney. Your agent may handle all your business affairs whenever you need them to act. It is an extremely important and powerful document.
For medical matters, an agent in a medical power of attorney is your decision maker if you are incapacitated. Without one, your next of kin steps in.
The companion document to a medical power of attorney is the HIPAA authorization. It permits you to include your partner/spouse and other key people who will have the right to confer with your physicians and see your medical file so they may be informed and make good decisions for you. It is also helpful to decline to include difficult or unsupportive family members from having this information.
The declaration of guardian in case of later need or incapacity is a firewall. It protects the agents you named in your powers of attorney from being challenged by a family member who tries to intervene in your care decisions. The family member may go to a judge claiming you need to have a guardian appointed to manage your person and financial matters. If the judge decides you need a guardian and appoints the intervening family member as your agent, it nullifies your medical and durable powers of attorney.
Another essential document is the directive to physicians, family or surrogates. You sign it now, in advance of becoming uncommunicative due to a terminal or irreversible condition. It is a gift to your loved ones that you have decided how you wish end of life care to be provided. It also stops other family members from trying to impose their wishes contrary to what your partner and close friends knew you wanted.
The seventh and final significant document is the agent to control disposition of remains. Here, you name the person empowered to make your final arrangements. There is no requirement it be your next of kin, but without it, that is exactly who the funeral home will insist they deal with no matter that your partner knew you wished to be cremated.
The beauty of the Significant Seven is that properly prepared and executed documents create legal rights under Texas law married or unmarried. They should be the bedrock documents each LGBTQ person owns to ensure their chosen loved ones are protected.
For more information on these and other estate planning options like trusts, child or tax planning and related strategies, contact Rebecca Covell, the attorney who’s not crooked or straight. 214-443-0300.