Let’s face it, no one likes to think about their own mortality. In fact, most people don’t even like to think about catching a common cold or the flu. Sickness and death are inevitable, but the impact that these events have on our personal, financial, social and familial lives can be controlled to some extent. How, might you ask? Estate planning documents are your keys to freedom in those times where freedom may otherwise be stripped from you due to sickness or death.
If you are in a non-traditional relationship — i.e., the unmarried couple living together for years, whether gay, straight or anyone in between — don’t you want to be the one who decides who takes care of you or manages your decisions if some catastrophe occurs? Of course you do. But if you don’t set up a plan, and you just “leave it up to the law,” the exact opposite of your wishes could occur.
For example, I think back to a family friend (let’s call him John) who identified as a gay male and disliked the idea of marriage in the traditional sense. John had a significant other (let’s call him Mike) for many years, but the couple never married. John and Mike held themselves out as a married couple, shared the same residence, etc… John was in his mid-fifties and in pretty good health, but unfortunately things took a turn for the worst when he suffered a serious stroke that left him in a vegetative state prior to his passing. John survived for a year or so, but he experienced several cardiac events in the meantime that eventually led to his demise.
While John was in the hospital, his sizable extended family who largely disapproved of his relationship and lifestyle swarmed the hospital room day and night. Most if not all of John’s family members opposed the idea of Mike being present and created such a ruckus with hospital staff that the hospital prohibited Mike from visiting his partner. Even worse, a disconnected family member who claimed to have John’s best interest in mind was eventually appointed John’s Legal Guardian, and with that authority made it impossible for Mike to be involved with John’s end-of-life care. In a sad but predictable ending to this story, Mike was left out of the family funeral arrangements and obituary.
Under New Jersey law, anyone over the age of 18 is considered a legal adult. As such, this individual is afforded certain legal rights and privileges that can only be delegated to another person or disposed of entirely by a legal device such as a Power of Attorney, or in the most serious of cases, a Guardianship may be necessary… But that topic is for another article. A person’s spouse is afforded some but not many rights by virtue of being legally married. It’s also important to note that New Jersey does not recognize common law marriage, that is marriage by virtue of cohabitating with your significant other for a number of years, holding yourself out as a married couple, etc.. (Note: States that recognize common law marriage have varying jurisdictional-specific requirements for valid common law marriages)
John and Mike’s heartbreaking story does not represent an isolated incident. In fact, we as attorneys see the consequences of alienated family members and/or disapproving family members all the time. What can be done to prevent or at least assist someone in John and Mike’s position? Had John consulted with an attorney prior to his stroke and executed a Power of Attorney that named Mike as his agent, and had John created a Living Will that named Mike as a Surrogate healthcare decision-maker, many of the problems that occurred while John was still alive but in poor health would have never arisen.
Further, had John signed a Last Will and Testament prior to his death, he could have included Mike in his funeral/burial plans, left Mike a portion of his estate, or named Mike as the Executor of the Estate. Granted, a non-married person who leaves a portion of his or her estate to their significant other subjects that bequest to significant inheritance tax consequences, but that subject is also for another article…
In summary, John could have avoided many if not all of these problems had he signed valid estate planning documents prior to his death. This story is not told to criticize John, but to make a lesson out of Mike’s heartbreak. Anyone over the age of 18 should have an estate plan in place, or at the very least a valid designation of healthcare and financial decision-making authority.
Let’s not witness more stories like Mike’s. If you or your loved one are over the age of 18 and lack valid estate planning documents, please call (732) 382-6070 and set up a consultation with a knowledgeable elder law attorney who can guide you through these difficult scenarios and ultimately create a plan that fits your needs and wishes.