Giampolo Law Group How-To’s

 

 

 

How to Protect Your Hospital Visitation Rights

 

1. Know Your Federal Rights

  • As of January 18th 2011, federal law requires that any hospital participating in Medicaid and Medicare programs must permit patients to designate visitors of their choosing and also must prohibit discrimination in visitation based on sexual orientation and gender identity.
  • Pursuant to 42 CFR 482.13(h) and 42 CFR 485(f), any hospital participating in Medicaid and Medicare must
    • Inform each patient of his or her right to receive visitors whom he or she designates
    • Not restrict or limit visitation based on sexual orientation or gender identification
    • Ensure that all visitors have equal and full visitation rights
    • Hospitals are required to adopt written policies and procedures that transcend visitation rights to ensure non-discrimination and cultural competency.

 

2.  Know Your State Rights

 

3.  Plan Ahead

  • In unforeseeable times of emergency, it pays to plan ahead.  You or your partner may be unable to state who they want to have visitation rights.  In such instance, hospitals will typically limit visitation rights to exclude those who are not legally or biologically related to the patient.
  • Instruct your doctor as well as your healthcare provider and hospital staff about who is allowed to visit and who is given priority to visit if you are hospitalized.

 

4.  Make Your Wishes Known

  • Speak with your primary care physician about your preferred visitation directives.
  • Speak with your local hospital about same-sex partner visitation rights.  Under federal law they are required to have procedures set in place for you or your partner to designate visitors in advance.  Ask about these procedures and file the necessary paperwork ahead of time.

 

5.  Anticipate, Anticipate, Anticipate

  • After completing steps 1-4, carry information related to your advance visitation authorization forms in your wallet or purse.
  • Store your documents with DocuBank Healthcare Directives Registry
  • By storing your healthcare directives with DocuBank, you will receive a wallet-sized card that makes critical emergency information instantly available via fax or on a secure webpage.

 

 

Sources of Additional Information

 

 

_______________________________________________________________________________________________

 

How to Plan Your Estate

 

1.  Know the Issues– Estate planning is necessary to ensure that your interests will be protected in the event that the unexpected occurs.  Communication is critical to making sure that your wishes are known and well documented.

  • Medical emergencies, temporary or long-term disabilities, and other unforeseeable events could severely inhibit your ability to communicate how you want your estate handled when you cannot handle it yourself.
  • A huge issue, especially faced by the LGBT community, is when a person dies intestate.
    • Intestate means that a person has died or become otherwise incapacitated without leaving a will to trust that will dictate how his or her estate will be divided amongst heirs.
    • In the event of intestacy, state law will govern how your estate is divided.  Through the public process known as “probate”, assets held by an unmarried person with no will or trust in place will pass to the following (not necessarily in this order)
      • Children or grandchildren
      • Parents, if living
      • Descendents of parents (siblings, nieces, nephews, etc.)
      • Lineal descendants of grandparents (uncles, aunts, cousins)
      • The state of residence for the incapacitated party
  • One can easily see how the probate process does not lend itself to many LGBT families, especially in those states that do not recognize same-sex marriages.  These default rules were not designed with the LGBT community in mind, and thus do not offer sufficient protections to the LGBT community.

 

2.  Know Your Options– There are several options available to you in deciding how to best divide your assets and estate.  Knowing the options you have available is critical to the efficient management of your assets.  If you become incapacitated without designating how you want your estate to be handled, your assets will be dispersed according to state default laws.  Some of the most essential and basic options are outlined below.

  • Power of Attorney- A Durable Power of Attorney is used to designate an individual or individuals that will step into your shoes and handle matters in the event that you are unable to do so.
    • Your attorney-in-fact can be your life partner, a family member, or a close friend.  Your attorney-in-fact is required by law to act in your best interest. Be sure to choose a trusted and capable person.
    • LGBT individuals in particular should designate an attorney-in-fact to avoid interference by family members, other individuals, or courts of law.  Unless you have signed a Power of Attorney, biological family members may be authorized by a court to handle your estate, regardless of your preference.
    • A Will- A Will is the cornerstone of your estate planning.  While other legal options available to you will prove helpful, a Will is indispensable.  Wills are essential in protecting those assets you currently hold or know about as well as those that you may not be aware of.
      • A Will directs how your estate will be distributed after you become incapacitated.  Without a Will, you will die intestate and your assets may not be passed to those closest to you.
      • A Will directs how expenses and taxes are to be paid and who among your beneficiaries should bear the burden of those expenses.
      • A Will disperses any future assets that become available to you after incapacitation.  An inheritance from a relative, a right to recover under litigation pending at the time of incapacitation, or any other unforeseeable windfall will pass by your Will.
      • Once completed, your Will must be filed with the court.  Should you file a more recent Will than one already filed, the most current Will takes precedence and supersedes any previously existing Wills.
      • Trust Agreement- There are multiple forms of Trust Agreements.  Under a Trust Agreement, you designate a party who will serve as your trustee and see that your assets are distributed according to your intentions.  You will additionally designate a beneficiary who will receive your assets through the Trust Agreement.  In some instances, you may designate the same person to serve as trustee and beneficiary, but where possible it is smart to designate a neutral third party to serve as your trustee.
        • Under any Trust Agreement, the party establishing the Trust may attach contingencies and caveats to ensure that his or her interests as well as the interests of his or her beneficiaries are best served.
        • A Bypass trust- A bypass trust will ensure that your interests are served for generations beyond you.  Under a Bypass Trust, your first beneficiary has full control of the assets in the trust during his or her lifetime.  When your beneficiary passes, any remaining assets go to a party that you have designated under the Bypass Trust.
        • Joint tenants with Right of Survivorship- For same-sex couples whose union is not recognized by law, property such as land or houses can become tied up in litigation with multiple parties seeking to obtain the asset.  By establishing Joint Tenants with Right of Survivorship, you allow the survivor to keep the property in question.  When one of the parties named under the Joint Tenancy becomes incapacitated, ownership will pass to the survivor.

 

3.  Know the Law– Knowing how your state of residence treats the validity of same-sex marriages and unions is essential to establishing a valid and executable Will.  Additionally, Federal Laws will often supersede state law in these matters.  Finding a lawyer who is familiar with Estate Planning as well as LGBT law is critical.  Ask a similarly situated friend who has a Will which attorney they used, and how they found their experience.

  • Once you have categorized your assets and selected those whom you wish to name in your Will, Trust, or other document, choose a lawyer who you are comfortable with.  Your attorney will help to iron everything out and ensure that your Estate Plan is air-tight.
  • Those who wish to contest your Estate will do so with the representation of an attorney.  Be sure that the law will protect your wishes and intentions.

 

4.  Execute– After meeting with an attorney and deciding how to best care for your estate, file the necessary documents with the court.  Your attorney will often help you with this step.  Furthermore, should your plans change during the course of your life you may revoke any existing Will or testament by filing a more recent one.

  • Because only the most recent documents are valid, it is critical to stay current.  Any major changes in your life (marriage, break-up/divorce, adoption, etc) should be reflected in your Estate Plan.

 

5.  Additional Information– See below for additional information.  Staying educated is the most important part of ensuring that your Estate is distributed according to your intentions.

 

 

______________________________________________________________________________________________

 

How to Begin the Adoption Process

 

1.  Familiarize Yourself

  • There are several avenues available to same-sex couples looking to adopt.  A brief understanding of each method is essential to pursuing the avenue best suited to your family.
    • Public Agency Adoptions, also known as foster care adoptions, can take several months.  The viability of this option varies with state marital laws and state-supported foster agency regulations.
    • Agency Adoptions are adoptions that are completed via an adoption agency.  It is important to first familiarize yourself with the agency that you are thinking of using.  Research the agency on-line to find testimonials as well as outlets for post-adoption support.  Much like public agency adoptions, the viability of this option varies by agency.
    • Independent Adoptions are organized and facilitated between private parties with little involvement from the state.  Placement is left to the parties’ mutual agreement.  A physician or attorney will usually help to work out the intricacies of the adoption agreement.  In many states, however, independent adoptions are illegal.
    • Open Adoptions can include any of the adoption methods listed above.  Under an open adoption, there is a level of communication between the child, his adoptive parents, and the birth family.  The frequency of contact or level of communication is tailored to each family’s wishes and goals and agreed upon prior to the adoption.
    • Second Parent Adoptions allow same-sex couples to adopt their partner’s biological or adopted children without compromising the initial parent’s custodial and parental rights.  Under a Second Parent Adoption, the child will have two legal guardians, both with legally recognized parental statuses.  Not all states, however, recognize second parent adoptions.  Where Second Parent Adoption is available, it is often the most viable alternative for same-sex couples looking to adopt.  Like all of the aforementioned adoption methods, it is essential to consult your state’s adoption statutes and laws.
    • Each state sets their own laws for same-sex couples as well as single LGBT parents looking to adopt.  A state-by-state index of state laws regarding LGBT adoptions can be found here.
      • In New Jersey, adoption law allows single LGBT adoption as well as joint LGBT adoption.  Second-parent adoptions are also allowed under NJ law.
      • In Pennsylvania, single LGBT adoption is allowed.  Second-parent adoption is also allowed.  Joint LGBT adoption statutes are unclear under PA law.
      • Once you have educated yourself on the different methods of adoption and decided which is best for your family, you are ready to begin the adoption process.

 

 

2.  Be Honest

  • One of the first steps in the adoption process is the Adoption Home Study.  The AHS is a detailed report of you and your family, compiled by a social worker.  It is important to be completely forthcoming in responding to any questions asked during this process.  To misrepresent any aspect of you or your family’s life in this instance will prevent adoption or disrupt an existing adoption.  The criteria for AHS varies by state, but you can expect the following questions and criteria;
    • Family History/Background
    • Neighborhood/Community/Schools
    • Physical Health
    • Financial Status/Employment Status
    • Criminal Background
    • References
    • Interviews
    • Whether or not You Already Have Children
    • By being completely honest and forthcoming during your Adoption Home Study, you will help your social worker find a good fit for your family as well as a prospective adoptive child.

 

3.  Know the Issues

  • Before beginning the adoption process, you should familiarize yourself not only with the issues you are likely to face, but the policies and rationales behind these issues.  Same-sex adoption law, much like same-sex marriage law, is in a state of flux.  Staying informed will prove beneficial to you and your family.
  • The Evan B. Donaldson Adoption Institute released a study in 2008 that is a must-read for prospective LGBT adoptive parents.  The study is titled, “Expanding Resources for Waiting Children II:  Eliminating Legal and Practice Barriers to Gay and Lesbian Adoption From Foster Care.”  It can be found here.

 

 

4.  Retain an LGBT-Friendly Attorney

  • Ask your friends if they have used an attorney and have had good experiences with that attorney in a case similar to yours.
  • Check with national organizations such as the ACLU or Lambda Legal for a referral list of attorneys in your area who are familiar with the intricacies of LGBT law.

 

 

5.  Do Your Homework

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*