Estate Planning

Estate Planning and Legal Documents to Protect Your Family of Choice

Since the State of Georgia does not recognize same-sex marriage or civil unions, same-sex couples must find other ways to protect their families and relationships. The following are several important documents that MUST be considered by same-sex couples to ensure that the rights and privileges they want to bestow on their partners are passed on to the right persons and not to biological family members:

  • Domestic Partnership Agreement
  • Durable Financial Power of Attorney
  • Durable Health Care Power of Attorney
  • Georgia Advance Directive for Health Care (Living Will)
  • Joint Tenancy with Rights of Survivorship Deed
  • Last Will and Testament
  • Living Will
  • Name Change Petitions
  • Power of Attorney for Minor Children

Even though Georgia does not recognize same-sex unions from any other state or country, some private companies, and a few counties and city governments in Georgia, provide for Domestic Partner health insurance benefits. Georgia couples obtaining a Civil Union or Domestic Partnership from another state will not obtain any rights in Georgia as a result of the ceremony. To obtain any protections for their relationships, same-sex couples must enter into written contractual documents.

Failure to speak to an attorney regarding preparing a these documents for yourself and your partner may cause unnecessary heartache and expense, all of which can be avoided by looking ahead and planning appropriately. Since there is no legal protection for GLBT spouses, it is up to you to take the necessary steps to ensure the family you have created is provided for.

Georgia Advance Directive for Health Care

On July 1, 2007, Georgia replaced the old Living Will and Durable Health Care Power of Attorney forms, with a new comprehensive document, the Georgia Advance Directive for Health Care (GADHC). The GADHC permits an individual to detail his or her preferences for medical treatment if he or she is in a permanent state of unconsciousness, persistent vegetative state, or is dying from an incurable disease. This document further permits the individual to designate another person as his or her agent in order to make medical decisions for the incapacitated individual. This document will instruct your health care providers and all other pertinent involved parties that the person you appointed as your agent is the person you want making care decisions for you, including the decision to remove you from life support, and handling your funeral arrangement.

Some things that are taken for granted, such as claiming the body of a loved one, will be denied to your life partner unless this document is prepared on behalf of each partner in the relationship.

Durable Power of Attorney for Finances

The Durable Financial Power Of Attorney permits one partner to select the other partner (or anyone of their choosing) as their agent. As the agent, this person would have the authority to make financial decisions for their partner as well as have access to their partner’s assets and money in the event that one partner becomes incapacitated. Failure to create a Durable Power Of Attorney relating to finances that names your partner as your agent may result in your biological family making decision that will affect both you and your partner in the event that you are incapacitated.

Durable Health Care Power of Attorney

Much like the Durable Power of Attorney for Finances, the Durable Health Care Power Of Attorney permits one partner to designate the other as his or her agent to make all medical decisions on the partner’s behalf. This document will ensure that the person you have chosen will be the one carrying out your wishes and looking after your best interests in the event that you are unable to do so for yourself.

Living Will

In the wake of the Terry Schiavo case, many people began looking into Living Wills. While for many this was their first experience, many same-sex couple already understood the importance of this document. The Living Will gives specific instructions to your health care professionals regarding your preferences for life-sustaining procedures in the event that you have a terminal condition, are unconscious with no reasonable expectation of regaining consciousness, or are in a persistent vegetative state. This document is what your family and health care professionals will turn to for guidance on how your medical care should proceed.

Domestic Partnership Agreement

A Domestic Partnership Agreement is a document that both partners have agreed upon and details the legal rights and responsibilities of each partner when a couple decides to form a long-term committed relationship. The Agreements can be written regardless of whether or not the couple owns property together. The Domestic Partnership Agreement provides both partners with details of how property, personal and real, will be distributed in the event that the relationship is terminated. It is usually the best practice since partners will enter into the agreement when both parties are emotionally in a good place and open to being fair to each other.

Joint Tenancy with Rights of Survivorship Deed

This document is of paramount importance when partners own real property together. Many times, upon the purchase of property, a Deed is issued. Most couples do not know that the type of deed issued is important to them in the event that one partner dies. In Georgia, a Tenancy In Common is the default deed. If the deed issued upon the purchase of your joint property makes the partners Tenants in Common, it is imperative that the deed be changed to a Joint Tenancy with Rights of Survivorship deed. This is probably the safest way to ensure that in the event one partner dies, the other partner owns the family home outright instead of owning it with the deceased partner’s biological relatives.

Name Change Petitions

For many same-sex couples, sharing the same last name is an important step in solidifying their relationship. This step is especially important when there are minor children involved. A petition to change names can be filed for each family member, one at a time, or for all family members at the same time, in the county where you live. The process can usually be handled in thirty to sixty days, and with the help of a competent attorney, the process should be smooth.

Power of Attorney for Minor Children

Since second-parent adoptions are not permitted in many Georgia counties for same-sex couples, the non-biological parents will have no legal rights to the child in the event that the biological parent of the child dies. A Power of Attorney for the Minor Child permits the non-biological parent to be involved in educational and medical decisions for the child in the event that the biological parent dies.

The Offices of The Edwards Law Group

3621 Vinings Slope Suite 4210
Atlanta, Georgia 30339


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