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Estate planning for Michigan same-sex couples: Powers of attorney

One of the most talked-about news stories in recent years has centered around same-sex marriage. During this time, a wave of states has approved same-sex unions through legislative initiatives or court decisions. However, not every state recognizes same-sex unions, which obviously has implications for estate planning.

As it currently stands, Michigan does not recognize same-sex marriages. However, a federal judge ruled that the state's ban on these unions is unconstitutional earlier this year. Reports indicate that a stay was put on the ruling, which has prevented any more same-sex couples from receiving marriage licenses and the state's recognition of unions that were performed during the short window of time after the initial court ruling.

In other words, the status of same-sex marriage in Michigan is in flux, but there is still no state-level recognition.

One of the most pressing legal concerns for same-sex couples in Michigan is settling powers of attorney issues. To be clearer, legal spouses are generally put in the position of making critical life decisions if someone becomes incapacitates. However, given that Michigan law doesn't recognize same-sex unions, a person's spouse or partner may not be able to make critical medical decisions in a hospital -- even if they were married in a state that recognizes same-sex unions.

The organization Gay & Lesbian Advocates & Defenders, or GLAD, points out that it may be beneficial for same-sex couples to create clearly worded durable and health care powers of attorney documents. In the state of Michigan, this would allow same-sex partners to make financial or medical decisions of behalf of the other.

GLAD goes further to point out that a person has the right to create powers of attorney documents, no matter his or her sexual orientation. The only way the documents can be invalidated is if there is evidence of fraud or lack of capacity when the documents were signed. In other words, courts would uphold these documents unless there is some reason to believe they don’t accurately represent a person's interests.

The big thing to remember is that documents have to be prepared carefully in order to be backed by a court. On the other hand, if no such documentation exists, then rights might be very limited. After all, no one expects for health issues to arise, but proactive planning help provide a path through sudden life changes.

Source: GLAD Answers, "Legal Planning for Same-Sex Couples: Preparing for the Unexpected," accessed June 9, 2014

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