Power of Attorney and Estate Planning for Gay and Lesbian Couples "Provide for Your Loved Ones"
By Kenneth A. Vercammen
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets we earn, the vast majority do not take the time to create a Power of Attorney.
National statistics indicate that 80% of Americans die without leaving a Will. Even more do not have a Power of Attorney. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have wills). Whatever the excuse, it is clear that people would benefit from having a Will.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney
What are these powers of attorney?
A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. You may wish to sign a Power of Attorney giving your partner the power to handle your affairs if you become ill or disabled.
The term "durable" in reference to a power of attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a power of attorney at any time for any reason. Powers granted on a power of attorney document can be very broad or very narrow in accordance with the needs of the principal.
Why is Power of Attorney so important?
Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the new New Jersey Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.
The lack of properly prepared and executed power of attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.
Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
He has served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One thousand Municipal Court and Superior Court matters in the past 18 years.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. He serves as the Editor of the popular legal website www.njlaws.com
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817