This week the United States Senate confirmed Amy Coney Barrett to the highest court in the land to solidify the Court’s conservative majority. While the current state of LGBTQ marriage law appears stable, estate planning and family lawyers will experience an increase in need for the following to protect the financial security of same-sex spouses:
- Wills
- Living Wills
- Trusts
- Marital Agreements
- Beneficiaries / Death Benefits
- Funeral and Burial Affidavits
- Transfer on Death Instruments for Real Estate
- Deeds of Joint Tenancy
- Last Wishes Affidavit
The conservative block on the Supreme Court could possibly have significant long-term consequences on parent-child relationships in LGBTQ families. The implications include less security for parent-child relationships for legal benefits such as inheritance, and even for the recognition of same-sex marriages as lawful as interpreted by the Court. The laws for LGBTQ families are unsettled and will continue to change hopefully towards a direction of less prejudice and more protection.
Regardless of the possibility of the Supreme Court attempting to dismantle all of the recent decades of progress for LGBTQ families, couples can remain assured that traditional methods of delegating authority for financial decisions and other important life choices remain intact. This includes through Power of Attorney for Property, Power of Attorney for Healthcare, and Transfer on Death Instruments for Real Estate.
Parent-Child Relationships.
Protections that derive from the biological parent(s) are always available to persons named by the biological parent as their agent or designee to carry out their parental duties.
Although the law has generally removed the phrase “illegitimate child,” unfortunately, the rhetoric of the prejudice has continued in various other modern forms. The children of LGBTQ parents are at greater risk of being denied the lawful rights derivative of a parent-child relationship. In other words, the application of parentage law to same-sex parents is less secure than the more predictable legal consequences of “traditional” families.
- Guardianship by Court
- Temporary Guardianship
- Plenary Guardianship
- Guardianship Designations
- Included in the Last Will and Testament
- Included in the Healthcare PoA of the Parent
- Short Term Guardianship Affidavit
- Delegation of Parental Powers
- Parenting Plan Agreements
- Voluntary Acknowledgment of Parentage
- Birth Parent’s Rights and Responsibilities
- Irrevocable Consent to Adoption by Specified Person
Short Term Guardianship Affidavit
A Short Term Guardianship Affidavit is a written instrument that allows a biological or lawful parent of a minor child to name a “short term guardian” for your children in the event you are unable to make decisions on behalf of the children. These decisions include the authority to make medical decisions for the minor children or enroll the children in school.
Short Term Guardianship Affidavits take place out of Court, unlike traditional guardianships. Short term guardians are not the same as judicial guardians and therefore do not have as strong of authority or legal backing. In other words, short term guardian designations do not need the prior approval by a judge and does not necessarily require any Court involvement at all. Likewise, revoking a designation made by a Short Term Guardianship Affidavit can be done in writing and does not require anything to be filed in Court or approved by a judge.
Delegation of Parental Powers
A Delegation of Parental Powers form that is properly executed by all parents who have legal custody of the child may delegate specific parental powers regarding the care and custody of the child for a specified period of time. The delegation of parental powers operates like a power of attorney in that the designation is most needed in the event the parent is incapacitated and unable to function as a parent. However executing a delegation of powers does not deprive the parent of any of his or her powers regarding the care and custody of the child.
Designation in Last Will and Testament.
Persons of all orientations should include guardianship designations in their Wills, if they have young children especially. However, the default under law is generally that the passing of a minor child causes custody to inhere in the only surviving biological parent. The guardianship designation could be the difference between where a minor child is placed after the untimely death of a parent.
LGBTQ Family Law Attorney
If you or your partner are nervous about what the future may hold for your family, a free consultation with a Pro Legal Care LLC attorney may put your mind at ease. Call us at (815) 200-8802 today to schedule or reach out to us online. We’d like to help you develop your plan for protecting yourself and your family.
