By Associate Attorney Danielle Nodar
In 2015, the Supreme Court's decision in Obergefell v. Hodges recognized the constitutional right to marriage extended to unions between same-sex couples. This entitled married same-sex couples to the same benefits and protections under the law as heterosexual couples. However, the Supreme Court’s recent decision overturning Roe v. Wade included a concurring opinion which hinted at the possibility that the Supreme Court may revisit the decision in Obergefell. The threat to overturn the right to same-sex marriage has sweeping consequences in areas relating to healthcare, financial decision-making, and inheritance.
The below information also applies to men and women who are in committed relationships but choose not to marry. North Carolina does not recognize common law marriage.
A person can appoint a Healthcare Power of Attorney designating an agent to receive medical information and make medical decisions on their behalf if the person becomes incapacitated. Without a Healthcare Power of Attorney appointing your preferred agent, North Carolina statutes dictate who will serve as your agent based on their degree of kinship. This hierarchy allows for most spouses to serve as agent for each other, but unmarried adults without the document must rely on a majority of their available parents and adult children to make such decisions jointly. However, if you have a Healthcare Power of Attorney naming your partner as your agent, then the document controls, regardless of whether the Supreme Court overturns the protections of same-sex marriage.
Another area of concern is who will inherit assets after death. In North Carolina, if a person dies without a Last Will and Testament, the state’s intestacy laws govern how probate property (all of the assets that a person owns in their individual name and assets that do not pass via beneficiary designations) are distributed at death. A spouse is given automatic rights and is entitled to at least a percentage of your estate. Obviously, if you are not legally married in the eyes of the law, your partner has no automatic rights, so a will is crucial to have to prevent assets from being distributed to people with whom you do not have a close relationship or to family that does not need your assets. A Last Will and Testament disposing of property will not be impacted should same-sex marriage be overturned. For more information about how property is distributed in North Carolina if you do not have a will, please see our previous blog: What Happens If You Die Without A Will in NC?
Finally, a comprehensive estate plan will allow you to provide for your spouse or partner with non-probate assets not commonly governed by the intestate succession laws, such as life insurance, retirement accounts, jointly owned property with rights of survivorship, securities with named beneficiaries, and Pay on Death or Transfer on Death accounts. By making sure that your partner is named as the beneficiary on these accounts, they will automatically be distributed to the named beneficiary regardless of marital status.
While we cannot anticipate how laws may change in the future, we can assist you with making sure you and your loved ones are protected and provided for through your estate plan. Please call Jesson & Rains for help in crafting an estate plan that works for your family.
By Associate Attorney Danielle Nodar
Do you have a child getting ready to start college or already away at school? While going through the college essentials checklist, make sure to consider what your child may need in the event of an emergency, including legal powers of attorney allowing you to make healthcare, financial, or legal decisions for them in event of an emergency. Once a child turns eighteen, the child is considered an adult in the eyes of the law. This means that parents are no longer given access to their child’s financial, health, and educational records without the consent of their adult child. For this reason, it is essential for parents and young adults to discuss the importance of healthcare powers of attorney and durable powers of attorney before a child heads off to college.
A healthcare power of attorney allows a person to name an agent to make healthcare decisions on their behalf in the event that the person is unable to communicate their wishes to their medical providers. This document contains authorizations allowing the health care agent to access private health information while they are acting as agent. Without these authorizations, medical providers are legally prohibited from releasing such information. No parent should be put in the position of being in a different state from their child and being told that their child has been hospitalized, but the hospital is unauthorized to release any other information about the child’s condition or care. A properly executed healthcare power of attorney can avoid this situation and allow parents to easily step in and access medical information during an emergency. This document also allows your child to include instructions relating to their healthcare, including
wishes related to organ donation or wishes relating to religious or cultural practices. The student can keep these documents on file with their university or medical provider so that it can be easily accessed if needed.
A durable power of attorney allows a person to name an agent to make legal, financial, and business decisions on their behalf if the person becomes incapacitated (unable to handle their affairs). The power of attorney can be used to allow parents to help pay a child’s bills, access the young adult’s personal bank account or education records, or manage the child’s finances or legal decisions in the event of an emergency. Without a durable power of attorney, you would not be able to manage your child’s financial and legal affairs during an emergency without petitioning a court to be appointed the child’s legal guardian.
If a child is going to college outside of North Carolina and does not have these legal documents in place, the laws of that state will control who may be able to make decisions on behalf of the child if they are incapacitated. For example, in North Carolina, if an adult does not have a health care power of attorney and is unmarried, the majority of the child’s parents can make healthcare decisions if the child is unable to. This means that parents will be joint decision-makers and must agree on all actions taken by doctors. In North Carolina and most states, there is no default decisionmaker for legal and financial decisions, so a parent must seek to be appointed the child’s legal guardian by the courts. This process is more costly, stressful, and time-consuming than having documents in place before the need for them arises. If your child resides in North Carolina but is going to school out of state, these documents will allow you to act on behalf of
your child in an emergency regardless of the other’s state’s rules on default decisionmakers as North Carolina documents will be valid in another state.
During this exciting time where a young adult is gaining more independence, they may be reluctant to give their parents decision-making power over health or finances. However, they can be assured that these documents only go into effect after doctors certify that they cannot make their own decisions. During normal circumstances, the young adult still maintains their privacy and autonomy over their healthcare and financial decisions; these documents only assist in the event of an emergency. Finally, now that your child has turned eighteen and is getting ready to enter adulthood, it may be a good time for you to review your estate plan to make sure that it still meets all of your needs and goals. Please call Jesson & Rains if you have questions about these documents or want to learn more about protecting you and your child’s interests through estate planning.
Back to School?
As the summer comes to an end and we start switching gears, there are some important things to remember for your college student. With the chaos that accompanies getting them back to their college campus, it can be easy to forget about your child's healthcare documents.
It is important to consider asking them to execute healthcare documents naming you agent. Once your child is 18 years old, you may not be able to make medical decisions for them or access medical documents. If you have a child returning to college this Fall, consider giving Jesson & Rains a call to consider your options. It is never too soon to start thinking about being prepared for all possibilities, and you can have peace of mind knowing that you are prepared.
- By Jesson & Rains Associate Attorney, Danielle Nodar
The beginning of a new year lends itself to reflecting on the year that has passed and setting goals for the future. Come January, we are bombarded with information about New Year’s resolutions and implementing plans to help us transform our resolutions from lofty dreams to our reality. From health goals relating to diet and fitness, financial goals such as saving for retirement or paying off longstanding debt, even decluttering our homes--there is no shortage of information about what we can do to improve our present and plan for our future.
However, one area of planning that many people seem to put off is creating an estate plan. Estate planning involves meeting with an attorney to discuss things like your assets and debts and how they could impact your estate plan; how you want your property distributed at your passing; who will administer the probate of your estate; who will handle your financial affairs and medical decisions if your become incapacitated and are no longer able to make those decisions on your own; and other important decisions that could make a lasting impact on your loved ones.
Even if you have an estate plan in place, you should meet with your estate planning attorney every three to five years to review any life changes or changes in the law. Some reasons to update an estate plan are:
If you have had any major life changes or just want to ensure that your estate plan is in order, make it a goal for 2019 to plan for your future and the future of your loved ones with estate planning. We can help you to ensure that your property is distributed how and to whom you want it to be distributed and to ensure that you are leaving your family unburdened.
In honor of that day, we thought we would provide an overview of the healthcare-related documents we draft for our clients in addition to the standard wills and trusts that most people realize are part of jobs. Additionally, though, estate planning attorneys draft documents that deal with the potential for incapacity during their clients’ lifetimes. These documents cease to have any effect after the client has passed away, so they are not true estate planning documents if you consider that definition to include only documents that deal with property distribution. Estate planning attorneys help their clients plan for possible incapacity with the following documents:
(1) Durable power of attorney. In this document, you would name an agent to act in your place as to financial, business, and legal decisions, if you were incapacitated (unable to handle your affairs).
(2) Health care power of attorney. In this document, you would name an agent to make medical decisions for you in the event you cannot speak for yourself. It is not necessarily an end-of-life document. You could be going in for a routine surgery and under anesthesia, for example.
(3) Living Will. This is an end-of-life document. You will state under what conditions and terms you do not want to be kept on life support. If you do want life support (or if you want to leave it up to your healthcare agent), you do not complete this document.
In order to sign these documents, you must have capacity to know what you’re doing. Waiting until someone is incapacitated to handle this means that you have waited too long. These documents must be completed in advance of any medical issues. If you would like more information, please give Jesson & Rains a call.
A few weeks ago, viewers across North Carolina were shocked when they saw a story on the news about a mother, Rae Stone, and her son, Forrest. Forrest had just turned 18 when he was involved in a snowboarding accident that left him in a coma. The Virginia hospital treating Forrest would not allow his mother to make medical decisions on his behalf or access his medical information due to HIPAA. According to the news story, the doctors at the hospital were the ones who were deemed to be the decision makers.
Clients in North Carolina want to know: Would this happen in North Carolina?
The answer is maybe. In North Carolina, the following people, in this order, are authorized to consent to medical treatment on behalf of an incapacitated patient:
(1) A health care agent appointed pursuant to a valid health care power of attorney (unless the court has appointed a guardian and suspended the health care agent’s power);
(2) A court-appointed guardian;
(3) An attorney-in-fact, with powers to make health care decisions for the patient;
(4) The patient's spouse;
(5) A majority of the patient's reasonably available parents and children who are at least 18 years of age;
(6) A majority of the patient's reasonably available siblings who are at least 18 years of age; or
(7) An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.
(8) The patient's attending physician.
Therefore, if a power of attorney or guardianship does not exist, in the event your unmarried child is incapacitated, you should be able to consent to their medical treatment in North Carolina. If you are married, you should be able to consent to your spouse’s treatment if they become incapacitated.
Given the North Carolina statute, is there any reason why I should fill out a health care directive or appoint my loved one as my power of attorney? Yes.
 Power of attorney for the sole purpose of making medical decisions on your behalf, or a health care agent named in your advanced health care directive (which outlines your wishes in the event you become incapacitated)..
 Power of attorney over health care decisions (as you appoint).
 N.C.G. S. § 90-21.13.
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Kelly Rains Jesson