Estate Planning for LGBTQ+ Individuals in Michigan

 

This webinar was recorded in April 2025 in partnership with Stand with Trans. Attorney Howard H. Collens, of Collens Estate Law, based in Huntington Woods, Michigan, is a strong ally of the LGBTQ+ community.  His knowledge and experience of  complex LGBTQ+ marriage rights is extensive. He is happy to answer any questions you may have, and certainly ready to act on your behalf to help you create a plan or defend your wishes.

Estate Planning for LGBTQ+ Individuals in Michigan (2025)

In today’s uncertain legal landscape, it is critical for the LGBTQ+ community to consider the value and importance of estate planning. With the 2022 Dobbs decision raising questions about the future of same-sex marriage protections established in Obergefell v. Hodges (2015), proper planning has become more important than ever.

The Changing Legal Landscape

When the Supreme Court’s Obergefell decision established nationwide recognition of same-sex marriage, it provided numerous benefits previously unavailable to LGBTQ+ couples, including inheritance rights, medical decision-making authority, and property protections. However, Justice Thomas’s concurring opinion in the 2022 Dobbs decision suggested revisiting other substantive due process precedents, potentially including Obergefell.

If Obergefell were overturned, decisions about marriage equality would revert to the states. In Michigan, for example, a constitutional amendment banning same-sex marriage still exists and could become operative again.

Essential Planning Documents

Regardless of marriage status, these six key documents provide extremely important protections:

Financial Power of Attorney: Authorizes a trusted person to handle financial affairs, ideally effective immediately rather than only upon incapacity.

Medical Power of Attorney: Enables someone to make medical decisions if you become incapacitated.

HIPAA Release: Grants specific individuals access to your medical information, particularly important for unmarried partners who have no legal family status.

Last Will and Testament: Identifies who will administer your estate and provides for your chosen distribution.

Trust: Controls asset distribution and can avoid probate, ensuring your chosen beneficiaries inherit regardless of legal family ties.

Funeral Representative Designation: Names who will make arrangements after death, preventing biological family from excluding partners or chosen family.

Special Considerations

LGBTQ+ individuals face unique planning challenges. Those estranged from biological family need explicit documentation naming decision-makers. Without proper documentation, biological family members often have legal priority over partners.

For transgender individuals, legal names on documents must match government records even if different from preferred names. Documents should be updated following legal name and gender marker changes to ensure their validity.

Taking Action

While Michigan offers some statutory forms, working with an attorney familiar with LGBTQ+ concerns is ideal. DIY estate planning can lead to serious problems and unintended consequences.

Estate plans should be reviewed annually and updated every 3-5 years or when significant life changes occur. The most dangerous approach is delay—all documents must be executed while you have legal capacity.

By taking these essential planning steps, LGBTQ+ individuals can protect themselves and their loved ones.

For more information, schedule a free consultation with Howard H. Collens. As a strong ally of the LGBTQ+ community, his knowledge of this complex topic is extensive. He is happy to answer any questions you may have, and certainly ready to act on your behalf to create or defend your wishes.

Request an appoint.
Call for an appointment:  (248) 453-7688

Video Transcript: Estate Planning for LGBTQ+ Individuals in Michigan

[00:04.6]
My name is Howard Collens. I’m an attorney. My law firm is called Collens Estate Law. We’re physically located in Huntington Woods (Michigan). In Woodward , just up from the zoo. I’ve been an attorney, this is my 30th year as an attorney, which is hard to fathom, but here we are.

[00:24.6]
My practice focuses on estate planning, estate administration, elder law. We do a lot of work in the probate courts, both contested and uncontested matters.

[00:42.5]
The opportunity to come and talk to you tonight, it was important to me because as an ally to the community, I know because I’m seeing it in my calls coming in, there’s a lot of fear and uncertainty.

[00:59.7]
And so knowing that, you know, by having these conversations, we might be able to cut through some of that and more importantly, empowering you to take the action that’s necessary for you and your particular circumstance. So my game plan for tonight, it’s about 6:40 right now I’m planning on trying to Talk for about 40 minutes and then we’ll do Q and a for about 20.

[01:26.4]
But here’s the thing, what I’m probably will do, let’s see how it goes, I might choose to take some breaks in between to just, If there’s something that, I’m not sure who’s monitoring the chat, if there’s something that’s, really useful or insightful or a question that’s going to really lead to better understanding, feel free to interrupt me because I’m happy to do that.

[01:51.4]
I may defer answering the question, but at least let’s put it forward. All right. And I’ll monitor the chat for you, Howard. Perfect. Yeah. Because if I’m sharing my screen, I won’t be able to really see that. Yep, I got you. So, and here’s the other thing. I won’t, I know some of you are on video, some of you aren’t, because I’m going to share my screen, I’m not going to see any of you hardly.

[02:11.3]
So I apologize up front. All right, good. Let me share. Oh, let’s see if this is going to go.

[02:34.1]
I think I picked the right one. Does it look like a slide? It does. Yay. Okay, so let’s do this then. I’m going to.

[02:50.6]
There we go. Okay. So what I want to do to start us off is… you know, one other thing that’s going to help me help all of us. So I’m going to make that go.

[03:03.4]
Okay, so what I want to do is start with a little bit of context. I don’t mean to dump too much history on you, but I want to think about like why where we are is, is like the place we are.

[03:19.7]
So in Michigan, there was a statutory ban on same sex marriage. It was imposed in 1995. There was a 2004 constitutional amendment that got voted in banning same sex marriages and civil unions.

[03:38.3]
There was a lawsuit brought called DeBoer vs Snyder. In 2014, it was resolved that challenged the ban on adoptions by same sex couples. The outcome of that was there was a very interesting window of time where same sex couples were able to get married because there was lower court ruling that allowed for it to happen in Michigan.

[04:08.7]
And so people rushed to the court clerks and got married. I mean there were, the court clerks opened up, I believe, if I remember correctly, was even over the weekend. I mean it was a very

[04:22.4]
small window that happened. And then there was sort of political controversy about how it was going to work out because there was some stopping of that. And then ultimately the case got wrapped into the, the federal case that was Obergefell vs Hodges, which is the case that in June of 2015 was decided by the Supreme Court, which was a transcendent case, right, that said that state same sex marriage bans are unconstitutional and against, you know, the 14th Amendment of the Constitution.

[05:05.7]
It was based on both substantive due process grounds and equal protection clause grounds. And that that’s going to become important as we think about sort of how the current status of the law is in this area. So what I want to think about with you though is sort of from an estate planning and contextual basis of what did that mean when Obergefell was decided?

[05:31.3]
It meant that certainly the same sex couples were afforded the right to marry, but it also provided them then the benefits of marriage that heterosexual couples had enjoyed previously. Changed the process for adoption and child custody gave spouses who are now spouses a priority which was built into the statute previously giving spousal priority in the event of incapacity.

[06:03.7]
Prioritized spousal decisions for medical decisions, the priorities of conservatorship and guardianship. And we’re going to talk more in depth about conservator and guardianship. But a conservator is someone appointed by the probate court to manage another’s financial affairs.

[06:20.7]
A guardian making sure that the person’s welfare is managed through the appointment of a guardian through the probate court. There were special creditor protections that were in place because of a marital status that wasn’t previously there.

[06:40.4]
Things we take for granted about filing joint tax returns as well. Being able to do a spousal return had a financial advantage because of the additional benefits of being able to say married.

[06:55.6]
Filing jointly then after death. Decisions for spouses also were important and available about making organ donation or where a person should be buried or cremated. Getting notice in the probate proceedings of a loved one.

[07:14.9]
The spousal right to inherit. So in the the general laws, spouses are given highest priority to inherit from their deceased spouse.  Before same sex marriage that wasn’t available to same sex couples.

[07:33.1]
So this conferred that right on a surviving spouse being able to name a spouse as a beneficiary. In some instances it was not available because you could only name a spouse. You couldn’t name a  non-spouse as a beneficiary in certain cases.

[07:53.2]
Survivorship rights or the idea that when a spouse names another spouse as a joint owner, there’s special transfer process that’s applicable.

[08:08.4]
Naming a spouse under a pension or as a beneficiary  of an IRA or a 401k. Allowing a spouse to extend the time under which those benefits can be paid out under an IRA or 401k means tax savings because you know, the spouses can extend those distributions over lifetime where  non-spouses could not.

[08:34.3]
The taxes were due and owing much more quickly.

[08:41.0]
Property benefits for real property. Spouses are given special protection for real estate that they own as spouses. If one spouse gets sued, there’s some limitations on a judgment creditor’s ability to access that jointly owned property because it’s a spousal property.

[09:01.3]
If it’s just owned between  non-spouses, those assets are more readily available for satisfying judgment creditors. There also is a benefit for purposes of real estate taxes, of transferring assets between spouses. There should not be what’s called non-capping.

[09:18.2]
So reassessment for the tax value and transfers between spouses. And that’s under the law. And so if you have a marriage, then you get that protection. If there’s not a marriage, that protection does not exist and that benefit does not exist. Howard, could you pause for a second, go back to that slide?

[09:36.0]
Yes. Yeah. So could you just explain like what you mean by like the judgment and creditors and the property. Sure, yeah. So let’s say that you imagine a scenario where a house is owned by married couple as spouses, right?

[09:58.3]
So one spouse and another spouse as spouses. Let’s say that spouse A causes a car crash that they’re responsible for and they get sued and the judgment that’s obtained is larger than their insurance covers.

[10:15.4]
The house that I’ve described would have some protection from being attacked to satisfy the judgment because it’s held as spouses, where if it wasn’t held as spouses, it was just domestic partners, for example, or non-related people, then it wouldn’t be protected and it would be subject to risk.

[10:38.3]
Does that help clarify? Thank you. Yeah, yeah.

[10:45.5]
So the, this one’s going to be a little complicated too, so stop me if it needs some clarification. So I want to think about estate planning impacts of Obergefell. You know, one of the issues at the heart of that case actually was about the estate tax and how it was unfair from a legal perspective to not allow a married spouse to claim an inheritance tax exemption.

[11:17.7]
So the way the estate tax works is that everyone has an exemption. Right now it’s about $14 million if you’re a state. And by the way, this Obergefell was over big money, right? So this is, I mean, you know, this mattered from a tax perspective.

[11:32.7]
So the, the state tax exemption, if it applies, allows you to pass  a certain amount of assets to anyone you want. But there’s an unlimited amount that you can pass between spouses.

[11:50.6]
So if you’re married, there’s a benefit. If you’re not treated as married, then you lose that benefit. So having this estate tax exemption, the marital deduction, allows married couples to transfer very large sums of wealth, wealth without paying inheritance tax.

[12:13.4]
So it was in terms of that particular case, it was sort of the central point. We’ve talked about survivorship rights a little bit already. I’m going to leave that to the side. But then, you know, priorities to serve both as guardian, conservator, personal representative is a person who administers a will through probate or who administers an estate that goes through probate without a will.

[12:35.6]
It used to be called executor, now it’s called personal representative in Michigan. And but the legal priority is given to a spouse over many others. And so having the ability to know that your spouse is going to administer the estate is a real advantage.

[12:58.8]
Now, if we think about planning, even before Obergefell was decided, same sex couples were unmarried, certainly had the ability to plan.

[13:15.3]
And so, you know, and it’s true in the context of before Obergefell, during the era of Obergefell and perhaps even after, whatever comes next, planning is critical. So it doesn’t really matter.

[13:34.1]
There are benefits certainly that come even without a written plan. But having a written plan certainly can overcome some of the deficiencies that would exist if a Obergefell goes away. Let’s talk about what that might or how that might come about, what the uncertainty is caused by.

[13:53.9]
So In June of 2022, the Supreme Court decided the Dobbs case. And the, the heart of the Dobbs case was an overturning of the Roe and Casey decisions about abortion, the right to abortion under the Constitution.

[14:15.5]
It was a huge decision, as we all know. And you know, Alito in the majority opinion said it wasn’t deeply rooted in the nation’s history. And so there, that was the rationale for why it was okay to overturn it.

[14:31.6]
The thing that draws our attention here is Justice Thomas’s concurring opinion that raised the, he raised the prospect of rolling back other rights that the Supreme Court had previously recognized based on the 14th amendment substantive due process.

[14:48.2]
So if you recall back to Obergefell, the rationale was based on 14th amendment due process, substantive due process. Now, Alito’s opinion did say that nothing in the opinion should be understood to cast doubt on the precedents that do not concern abortion.

[15:06.7]
But I don’t know how much that’s to be believed. And of course, the makeup of the Court has changed further since Obergefell, which puts more at risk. Justice Kavanaugh, you know, tried to assuage the opinions as well, saying that overruling Roe doesn’t mean the overruling of those precedents and doesn’t threaten or cast doubt on those precedents.

[15:32.8]
But again, I’m not sure how much we should allow that to hold us comfortable. Right. I think that, you know, the dissent certainly raised concerns and justifiably I think so, you know, the dissent reading, no one should be confident that this majority is done with its work.

[15:59.0]
So the question that we face then, is Oberfell at risk and what impact if the Supreme Court were to revisit those kind of precedents? The outcome, if it is overturned is what ends up looking like in the post Dobbs world, which is decisions are made state by state and the rights of the various states would control.

[16:26.7]
And the, the problem of course, here in Michigan is our backstop is the Michigan Constitution. But that is not favorably structured right now because it does ban same sex marriage.

[16:42.7]
That’s troubling. And so where we go with that, I’m not here to predict. That’s not my, I’m not in a position to tell you the answer to that because I just simply don’t know. I can tell you that I’ve not seen anything imminent, but I also can tell you, I mean, if you pay attention to things going on in Lansing, there are state legislators that are coming forward requesting that the Supreme Court overturn Obergefell.

[17:15.1]
And so things on the horizon are challenging. So vigilance is our call. Right. Let’s talk about estate planning. You know, let me pause there. That was a lot.

[17:30.6]
That’s. Let me see if any comments or questions are brewing that we should adjust address about that sort of stuff because I do want to then turn to maybe some more practical elements of estate planning. Yeah.

[17:45.7]
You don’t have anything in the chat so far. Roz just asked where everybody is from. I think one of my questions I did see a few states, you know, this last season have amended their constitution. I’d be curious to know if you had any opinion as to why Michigan has not yet amended the constitution or if they maybe have plans to or if you’ve heard anything, just amending it to permit same sex marriage.

[18:08.2]
Yeah. Yeah. I mean, I suspect like any constitutional amendment, it’s a matter of money and politics. You know, doing a constitutional amendment is an expensive proposition. You have to come up with a proposal, you have to get the signatures to allow it to happen and then you have to convince the voters of the state of Michigan to pass it.

[18:32.9]
And the other thing that we’ve seen recently is that there have been ways that Constitutional amendments have been put on the ballot and then undermined by the legislator. Legislature, excuse me. And so I think you have to be careful if you’re going to go forward with the constitutional amendment.

[18:55.1]
First, that you can get on the ballot. Second, that you can pass it. Third, that you can get it through without monkey business, you know.

[19:04.5]
Yeah. So is it possible. Yes, I think that, I mean looking at the political wins of the last election, I don’t know where we would fall out on that, if it’s feasible or not.

[19:21.0]
I mean this next, you know, the cycle, in two years, maybe we have a chance because people are going to be fired up about it. But our state is quite divided. I mean if you look, we are, we are the purplest of states. So…

[19:39.3]
But thank you. Yeah, go ahead. Yeah, so I was just going to say. Let me turn my camera while I’m talking. I know one of the things that I’ve heard from folks who are very concerned that if they are in a legal marriage.

[19:55.0]
Legal same sex marriage, what happens if, marriage gets overturned? Yeah, no, I just had, I just had a conversation with a couple yesterday about this topic. Married without disclosing their specific details, they were married out of the country before it was legal in, in the States.

[20:20.9]
They’ve, you know, they live here and in Michigan and it’s like what happens. And I mean in that case, I think it’s interesting. I mean I think the, that marriage, whatever happens, let me say how I responded generally, which is that that whatever happens, the court will have to address those kind of cases.

[20:40.3]
Right. So what happens, and there’s a variety of classes of people that will have to address. One is the people who were married before Obergefell somewhere else, other countries. I mean clearly they’re, you know, Canadian marriage is still a marriage.

[20:55.4]
As long as Canada says it’s still a marriage, they’re still married. You know what it means in, in Michigan or America, that’s different. And they could say that those foreign married folks don’t have any federal civil rights anymore.

[21:13.3]
Right. That could be an outcome. They have to address the people who’ve gotten married since Obergefell. And the other thing they have to think about is the families that have been created as a result of the marriages. Right. I mean one of the things that I think is, will be a big challenge is about children of those marriages, they can’t just ignore those kids.

[21:37.3]
They have to address that topic, how they’re going to do that. I’m not smart enough to answer that on this call. Yeah, custody definitely is going to be complicated. It’s already complicated, let alone throwing in undoing a marriage. Do you think that it’ll be similar to a trigger law or trigger law, similar to abortion, that, you know, it’ll go back to the way that they’ve handled abortion laws.

[21:59.6]
Well, in, in Michigan, I mean, because it’s the Constitution that’s going to apply. So it’s not even a trigger law. It’s the Constitution of Michigan. So it’ll go into effect. And Roz asked where I was going with that is if same sex marriage is overturned, how do couples protect themselves?

[22:16.7]
Which for sure, and so part of… Let’s get to that because that’s sort of where I’m going with all this. So having said that, this is just some general data that I think is always in sight. It strikes me as amazing on some level and not surprising on another.

[22:34.3]
So 64% of Americans say that having a will or trust is very or somewhat important. And by the way, Caring.com does an annual survey of this topic and they’ve been doing for years. So there’s longitudinal data. This is pretty consistent, even though that people say it’s very or somewhat important.

[22:49.6]
Only two out of three adults have, two out of three adults do not have a will. So a third of people around typically don’t have estate plans. It might be 40% at most. Do you know, one in three Americans who currently don’t have a will report that they perceive that they don’t have enough assets to leave behind.

[23:14.7]
So I can understand that if you have limited assets, there’s perhaps not a great reason to have a will. But I will push back to say even if you don’t have a lot of assets, it’s important to have powers of attorney for finance and for medical decision making. Because even if you don’t have assets to leave after your death occurs, having someone who can help you through a situation of incapacity while you’re alive is really important.

[23:44.4]
Right. And so, you know, people who make 80,000 plus a year, 63% of those people said they just haven’t gotten around to putting a plan in place. Why? Because it’s not nearly so fun. I mean, I think that it can be, but  it’s certainly important.

[24:01.5]
So it’s about priorities too. All right, so let’s talk about some of the nuts and bolts about planning. If a person dies without, excuse me, if a person grows incapacitated and is still alive, then they’ll need to have, if they have no written plan, a guardianship to manage their welfare, medical decisions, where they’re living, that kind of thing, conservatorship to manage their financial affairs.

[24:28.8]
If they have enough assets to deal with, those interactions are with the probate court. And then on an ongoing basis, the people involved will have a relationship with the probate court. If you ask most people, do they want that, they will say no.

[24:44.1]
They don’t want to have an ongoing relationship with the probate court. So the counteraction to that is to have some other sort of planning done. I mean, it could be that assets are held jointly. So to give someone else access.

[24:59.5]
I don’t recommend that as the sole purpose though, because joint assets are complicated. They expose the main account holder’s assets to the risk of the joint holder. If the joint holder gets sued, they’re going after any assets that the joint holder has, which could mean the principal person’s assets are at risk.

[25:20.0]
Jointly held real estate… if the joint owner doesn’t want this property sold, they could block the sale and make it complicated. So there’s important reasons why joint ownership isn’t the panacea but designating a beneficiary could be a good outcome, especially to make sure the assets pass properly to the person or people you’re intending to after death has occurred.

[25:45.6]
On Insurance for IRAs 401s. Having a will allows a person who sets up a will to describe and control their administration, the estate and the distribution. So making sure that they name a personal representative, the person who administers the estate.

[26:06.7]
If a person is to be disinherited, think about, I know this is, I hear this a good amount from my clientele who, who has either intentionally disassociated with their, their birth family or have been shunned by their family.

[26:30.5]
Making sure that the distribution of the estate that would go otherwise to a family member does not go that way. So having a written plan in place makes that a possibility. If a person is charitably inclined, then having a written plan in place is also important.

[26:50.3]
You know, charities are not default takers under intestate laws. What happens if a person dies without a will? So carrying out that intent, there has to be something in writing to make that happen. The other thing that I see in,

[27:09.2]
you know, clients who are gay, lesbian, bisexual, transgender, many don’t have children, which would typically be the objects of where their estate goes. And they’ve accumulated wealth so they can have their estate go to charitable causes that are meaningful to them.

[27:34.4]
But having that in writing is an important piece of that.

[27:40.7]
The other main focus of an estate plan could be a revocable trust. Trust is a different approach, often with more complex estates and plans. One of the benefits of having a revocable trust is it is private.

[27:57.7]
It doesn’t go through the courts. Where an administration of a will happens through the probate court, a trust holds and allows a trustee to manage those assets without having to go through the court. Usually the person who sets up a trust will nominate a trustee.

[28:17.8]
They’re probably going to name themselves as the primary trustee and then. Or if it’s couple both of the members of the couple together. And then the process would mean that when the first of them grows incapacitated or dies, then the successor would continue to serve.

[28:38.5]
That transition from one trustee to the next occurs without having to go through a probate court process. So that’s a probate avoidance during lifetime and after death. The management of the distribution process is also generally without having to go through the courts.

[28:58.4]
So it gives a more private approach and outcome. They are a little bit more complex to set up. They have some additional cost to do them as well. But upon disability or death of the grantors of the people who set the trust up.

[29:13.7]
The transition and distribution is a more streamlined process. Often they do still require administration. So administration, I have to say, stinks. Whether you’re doing it through a probate of a will or person who dies without a will or trust, it is complex.

[29:29.5]
It takes time and effort and may cost money to get it done. Trusts also do afford the ability to eliminate or minimize inheritance tax. I threw a slide in here too about thinking about who to name as the trustee.

[29:45.4]
But this actually applies to any fiduciary. So a fiduciary is a person who’s acting on behalf of someone else. So it is the trustee under a trust, but it’s also the personal representative under a will or the agent under a financial power of attorney.

[30:01.6]
We’re going to look at those in a couple of minutes here. Whoever is named needs to be a person who’s going to do right at every turn, who’s going to act properly, who you know. And again, sometimes that is a spouse, sometimes it is a friend, sometimes it’s family, sometimes it’s not.

[30:22.0]
It just depends on who the right person is. The benefit of having a written plan though is you get to pick who is going to serve in that role. Sometimes people don’t have the ability to name a trusted family member or friend, so they look to other professionals.

[30:40.4]
Perhaps it could be an attorney, accountant, financial advisor, it could be a corporate trustee. Think about a trust company that exists through in connection with a financial advisory. Those are certainly options and sometimes those are the best options because those kind of individuals and corporate trustees can be dispassionate or they can be more direct to ward off fights that might happen in the future.

[31:08.5]
Or a family who is otherwise not to receive assets comes forwards and tries to get assets.

[31:18.3]
All right, powers of attorney. Let’s focus on those for a few minutes. I want to talk about really two and a half kinds. The first kind is a financial power of attorney. The second kind is a medical power of attorney. And the third thing isn’t really a power of attorney at all, but it’s sort of connected.

[31:35.3]
It’s a HIPAA release. So I don’t know if I have a slide on that. Let’s talk about it now. The standalone HIPAA release can allow you to specifically call out who has access to your medical affairs, not make decisions, but learn about what’s going on.

[31:57.4]
So, you know, we go to the doctors all the time and they have us fill out the HIPAA forms and what they often say is, I give authority to release information to other doctors. Hospitals, insurance companies, fail to remember that we actually have family or friends who should be able to have access.

[32:16.6]
One of the challenges that, that I see in, in this community is that if people aren’t married and they want their partner to learn about their medical condition, they don’t have a family relationship, they’re not going to be.

[32:32.5]
And if there’s no HIPPA release that specifically calls out that that person is entitled to learn about their loved one’s condition, they will perhaps not be able to learn what’s going on. So an important document.

[32:49.5]
Let’s focus our attention next on financial powers of attorney. So this document allows you to name a person to act on your behalf to handle financial affairs. It doesn’t require probate court involvement to set it up, which is good.

[33:09.1]
The person who is named to serve under the document, the technical name is attorney. In fact, it does not have to be an attorney, just what the early attorneys were, bad marketers. They named all the stuff about the same. So it was confusing. But yeah, the attorney, in fact is the agent under the power of attorney and it should be.

[33:29.2]
As I described earlier, it’s a fiduciary role. So the person acting has to be someone who is to be trusted and is going to do right by the principal. Powers of attorney for finance typically are best if they are effective immediately when they’re signed.

[33:49.8]
They could be a springing power, meaning it’s only effective upon incapacity. But I find those documents not to be as useful if you think about a person who suffers a stroke and it becomes obvious immediately that they lack capacity.

[34:05.8]
Those are if a springing document works. But think about the person who is suffering from dementia. That person sometimes is capable and sometimes lacks the ability to manage their finances. And that middle gray period where it’s not obvious whether they have capacity or lack capacity can be very problematic.

[34:25.6]
And if it’s a springing power, that power is not available. Powers of attorney like this are effective until they’re cancelled. They can be canceled either by the individual. Set them up by a court if there’s controversy, or the person dies and then the power of attorney stops.

[34:44.8]
So powers of attorney are only lifetime documents. They do not linger on over after a person dies.

[34:54.5]
In Michigan, we just recently passed the Uniform Power of Attorney Act. It was in July of this past year. One of the benefits of the Uniform Power of Attorney act is that there is now a statutory form. And that statutory form is pretty robust.

[35:11.2]
It covers a Lot of authority. So it breaks it down into general authority and specific authority. I want to share with you just briefly the kinds of authority that can be granted under a power of attorney for finance under the UPOA in Michigan. So look at these. These are real estate.

[35:26.6]
I’m dealing with tangible property investments, banking and financial institutions, operation of a business dealing with insurance, dealing with estates and trusts, different claims and obligations that might exist like contracts dealing with family management and personal management things dealing with government benefits, also retirement taxes and making gifts in certain circumstances.

[35:53.3]
The law also allowed for the more specific kinds of authority. These are creating or amending trusts, making certain specialized kinds of gifts, dealing with creation or changing of rights of survivorship, meaning that jointly owned property and how it’s going to pass when the first person dies.

[36:17.0]
With survivorship, it would pass to the name joint owner. And so that’s an important tool certainly to avoid probate, changing a beneficiary designation, delegating authority if it was granted under the power itself.

[36:34.4]
Dealing with annuities and exercising fiduciary powers that the principal might have if there’s authority to delegate those powers. Dealing with certain electronic communications. This is not the full access to digital assets.

[36:51.4]
A digital asset being like your email or your social media. I think those powers will need to be granted separately but are also important to be included in this kind of document. And then more extensive banking powers. The financial power of attorney under the UPOA before I move on fully is it’s more accessible and the benefit of having it is that if a person grows incapacitated or needs some support, then the agent can act on the principal’s behalf to carry out those various transactions.

[37:33.8]
The financial power of attorney under the UPOA, the promise and the exchange and the law was that if people use the statutory form, then it should be more readily recognized by the financial institutions who are being presented it.

[37:52.0]
It’s still a little early to tell how well that’s working, but that was at least the exchange and we’ll see if it carries out, you know.

[38:04.3]
Also just wanted to let you know it is 7:15, Howard. Oh goodness. Okay, great. So I’m going to wrap up. I’ve got couple more slides I want to get through. Let’s talk about medical decision making. The patient advocate designation. So this allows a person to name a patient advocate to make medical decisions should the primary person become incapacitated and unable to make those decisions themselves.

[38:29.0]
It deals with applying or withholding medical treatment end of life decisions as well. The patient advocate without a Patient Advocate, you know, it’s going to be left up to person’s family or friends to get guardianship.

[38:47.8]
With a patient advocate designation in place, the person who’s setting it up can then control who is going to have the the authority to make those decisions. So again, in situations where people may be estranged from their biological family, it’s important to put something like this in place.

[39:07.3]
An incapacity determination has to be made. So this is a springing document. It’s only effective upon incapacity. And so that process has to occur. Needs to be someone you trust. Typically, I see this a spouse, a child or friend.

[39:24.5]
You can name more than one. I question whether you should. I’ll leave that topic to the side in the interest of time. One of the other things that I think is important for us to cover before we get to the full end here is thinking about appointment of a funeral representative.

[39:40.7]
Michigan law allows you to nominate someone to serve as what’s called a funeral representative to make plans for disposition after death. So setting up funeral arrangements. Cremation, what happens with the remains where the person’s body or cremates are going to be buried?

[40:02.5]
Having that document prioritizes the person you want to serve in that role. So if it is again, not necessarily a biological family member who’s going to be given that role, having something in writing is definitely important.

[40:25.1]
I want to spend a couple seconds talking about names and pronouns and legal documents. So this is an evolving topic. I have to say I think that many lawyers don’t give this much consideration. I think I hear from clients who come to me that part of the reason why they’re not working with the lawyer they initially were in contact with is because they, the lawyer refused to recognize them by their preferred or chosen name or that they were misgendered in the conversations that were being had, that’s entirely unacceptable.

[41:02.5]
That should not be tolerated. One thing I will tell you though, and again, this is the complicated part a bit, is a person who has a legal name that they were to regard as their dead name may still need to use that name in the documents because if there’s. They haven’t gone through a formal name change, that is still, from the government perspective, their name.

[41:22.8]
And so having that legal name in the documents is important because you want to make sure that the connections between the documents and the institutions that are going to receive and need to act on that document will line up.

[41:41.6]
So, you know, in cases where a person is going through their transition and is going to engage a name change. Sometimes what ends up happening is they come to me because they want their documents put in place because of a variety of issues that are arising because of transition.

[42:01.8]
And we’ll do an initial document set with their, their current legal name. They’ll engage the name change process and then we’ll update the documents. You know, going through gender marker changes as well will be important as part of that.

[42:20.5]
That process has obviously become way more complicated under the Trump administration with the executive orders. I know that I have clients who were able to get their State of Michigan documents updated but will not get their passport updated this point because of the, the current existing executive orders.

[42:37.4]
But documents updates are listed there. Birth certificate, driver’s license, Social Security, passport, other estate planning documents. All right. I was also asked to talk about low cost or no cost options. So one of the things that, that you should be aware of is that there are currently available forms that are produced by the State of Michigan.

[43:02.7]
There’s a statutory will form that is a sort of a fill in form that you can do. As we talked about, the statutory durable power of attorney for that. And there’s also patient advocate designation forms. If you go to this link and if you just Google Michigan peace of mind, the first link that comes up is this link.

[43:21.5]
It includes the ability to put together. It’s a document that includes the, these documents in it. You know what, excuse me, it doesn’t contain the statutory power of attorney because it was a document that was created before that law went into place.

[43:36.5]
I haven’t found online actually any consistent form yet with the statutory durable power of attorney. The language that you can use is in the statute itself. But in terms of like a unified form, I don’t, I haven’t come across that yet online.

[43:56.7]
Setting up beneficiary designations is another, you know, in terms of transition of assets after a person dies. as I said earlier, I would caution you about joint ownership because that can lead to some unintended consequences. There are certainly clinics that are out there that will do legal clinics that will help you put an estate plan together.

[44:19.8]
And they, some are ongoing, some are pop up. So, you know, just, just take a look. There are pro bono opportunities for attorneys to help support the community with these things as well. They are, I would say they are pretty limited.

[44:36.7]
I’ve been looking for about six months and have not found any clinic or any type of low cost. Well, and I will say that I think it’s, and welcome to the.. Right, it’s complicated. administration.

[44:51.9]
Right. I mean the funding sources for these I was just at a conference and, and one of the panels was a legal aid panel. And you know, their funding is just in shambles right now and getting worse. So these kind of services, I think are what will bear the brunt of it.

[45:10.4]
Because again, as much as we like to have estate planning, if they have to balance between, you know, defense work and bankruptcy work and things where people are personal or financial risk, they’re going to prioritize those over doing this kind of planning work.

[45:32.1]
One of the things I would say though, in terms, and this is sort of the wrap up and then we’ll open the questions and.. I’m sorry, I’m a little longer than I expected affected is, you know, take action, don’t wait. It is important, regardless of whether you’re single, married, doing planning, it’s not the thing that people think about doing first, but it is an important thing to do.

[45:52.5]
None of us know if we’ll grow incapacitated, all of us will die. So we know that this is something that actually matters. If you have a plan in place, I always recommend reviewing it once a year informally. You don’t need to have your attorney involved in that. But if you, you know, every three to five years,  I recommend my clients come back to me and we take a look more deeply at what’s changed in the law and what needs to get updated.

[46:15.9]
You know, plans change. Why? Because people change. The circumstances of anyone’s life can be different over time. Estate plans represent moments in time. We know, we know right now, we know we can anticipate a little bit in the future, but much beyond that, immediate future, hard to say, right?

[46:33.0]
So things need to get updated. Well, your first plan may not be your very last plan. Things are changing enough that that might need to be different. If your family circumstances change, you get married, you get divorced, you have a child, you have, you know, an estrangement.

[46:50.2]
Those things need to be addressed in the plans. You know, as much as we talk about low cost or no cost options and doing it yourself, I do caution you, doing it yourself can sometimes lead to terrible results. And here’s why. For the uninitiated in this subject, it’s easy to mess up.

[47:09.5]
And, and unfortunately, the messing up part can be really complicated to fix and may lead to really bad results. So, you know, as, as much as we don’t, I like to say we don’t cut our own hair, we don’t change our own oil, we don’t practice medicine on ourselves.

[47:26.4]
This lawyering stuff is not for the faint of heart. We want to make sure that’s done properly. Let me conclude by saying I’m happy to talk further about any of this. Feel free to reach out to me if you like. The slide set. I’m happy to share them out. I’m going to stop sharing though now.

[47:43.3]
And then we can take questions and any comments that people want to raise.

[47:55.7]
Looks like Justin has his hand raised.  So for instance, so my question is, you talked about some don’ts, so don’t try to do stuff on your own. What are some other don’ts and what are some do’s that you suggest?

[48:11.9]
Yeah, so I think, I mean the,  actually I talked about a couple don’ts that, so I’ll focus on the don’ts first, then we’ll focus on the do’s. You know, the process of going through the estate planning, setting it up is, you know, is daunting at times.

[48:39.2]
It can be intimidating at times. So putting it off, I think is one of the things that people do. So I would say don’t put it off. That’s a critical thing. Get started in ways. I will also also say

[48:54.8]
the affirmative thing though, that that has to happen is figuring out who the best set of fiduciaries is. You know, knowing that it’s going to be your partner or your friend is fine to think about, but if you, you know, you’ve got to put things in place because just thinking about it isn’t sufficient.

[49:18.5]
I also really suggest, and I know I’m sort of combining do’s and don’ts, so forgive me. Thanks for the opportunity though, Justin. You know, him writing these documents can lead to some real bad outcomes. I mean, I just had a contact this afternoon from a client whose spouse had died.

[49:40.2]
The, the children of that spouse were cut out because there was a handwritten document. And it’s like. And I’m sure that the per… Well, I’m not sure of anything, but it would seem to me really unusual that the person would have intended to cut them out.

[49:59.8]
So, you know, I think that the challenge of doing it yourself is that you, you don’t know what, you know, happens, good, bad or otherwise. Also, I think finding an attorney who understands this stuff matters. It is not a generic practice across, you know, any attorney who can do an estate plan, I see plans on a somewhat regular basis who were drafted, who are drafted by non estate planning attorneys who just don’t understand what they’re writing.

[50:32.2]
And so they mess things up or, you know, again, this. I was meeting with a couple this week and the plan, a married lesbian couple, no children. And you know what their plan said? I give everything to my spouse. That makes sense if my spouse has predeceased me.

[50:50.8]
We give everything to our children. They will never have children. And that was all the plan said. And then the rest of the plan said I give everything to, to heirs at law. So that means it would go to their biological family, which they have no relationship with.

[51:07.7]
Like that’s a mess. And that’s someone who didn’t understand what you know, who was sitting across from them and what they wanted. So having an attorney who pays attention to your circumstance matters and questioning, you know, making sure that the language that that’s drafted coordinates with the intent that that is important.

[51:28.9]
And especially in the context of this community where the, the family relationships and the, and the connected relationships don’t necessarily align with what the generic law provides for. Having a specific writing that calls that out in a way that that matters to you is, is essential.

[51:51.5]
Right. It looks like also Molly had a quick question as well. Go ahead, Molly. Hi. Yeah, I had a quick question. I was just wondering if you have thoughts about people using Lady Bird deeds as a form of estate planning, especially in Michigan.

[52:08.4]
Spoiler. I am an attorney, but I’m not an estate planning attorney, which is why I’m here. To your point of non estate planning attorneys don’t really know what is going on. So I just wanted to know what your thoughts are on that. Sure. So thanks for the question and reach out anytime with, you know, for stuff that I can help you and we’ll have to find out what sort of work you do.

[52:30.0]
Having said that, ladybird deeds are a great technique for many the idea. Let me describe what they are. Right. For those who might not know what that is. A Lady Bird deed, what it says is the person who owns the property or the people who own the property transfer the property from themselves back to themselves.

[52:50.2]
They reserve the right to live in the property, what’s called a life estate. They reserve the right to sell the property. If they never sell it and then their death occurs, then they get to say where it goes. A beneficiary of sorts. Right. And so in the right case, a Lady Bird deed is a good tool because it provides an easy transition on the death of the first.

[53:15.1]
If it’s a couple, it provides a mechanism of avoidance of probate at the death of the the last holder. Those are the good news parts about the Lady Bird  and Lady Bird deeds came into fashion largely they’re, they’re a creature of the land title standards in Michigan, they came into vogue because they provide a really good Medicaid planning tool.

[53:43.2]
Sorry, in Michigan we have what’s called, and this is a jog, so stay with me. In Michigan we have what’s called estate recovery. If a person receives Medicaid and then like think about a person who goes into a nursing home and needs long term care and they only have a lot of money and Medicaid pays for the long term care, the state of Michigan reserves the right to recover against the person’s probate assets when they die.

[54:06.5]
A probate asset being an asset in the deceased person’s name only without a joint owner, without a beneficiary. So when that person dies, the state of Michigan, someone opens a probate estate and the state of Michigan then has the right to recover against those assets. So before the family or friends get the money, the state of Michigan comes back in and recoups it.

[54:29.8]
The Lady Bird deed serves to avoid probate. So it avoids the estate recovery. It allows a person to qualify for Medicaid while they’re alive. It allows them to pass the asset without having to go through probate on the death. And, and so it avoids the estate recovery. That’s the, you know, that’s the sort of structural reason why.

[54:47.8]
So there’s some reasons why Lady Bird deeds don’t work though. Let’s like mix the bad with the good too. So the, the downside is that, or at least I personally, when I do a Lady Bird deed, I don’t like to do complex planning within the Lady Bird deed. So one of the things that you can say is, you know, if I set up a labor deed and I say I’m living in the house, if I never sell it, I’m giving it to you Molly.

[55:09.8]
But if Molly dies, then I want it to go to Daily. And if Daily’s already dead, then I give it to Roz. That’s not a good Lady Bird deed process. I don’t like doing it that way because it’s, it’s not really in that way supposed to be a probate substitute. It just, it messes, messes the title up and it causes more like if you think about what the title company is going to say, seeing that kind of, you know, contingency, I just don’t like to do it.

[55:38.6]
So those are more appropriate than if you’re going to make a complex distribution plan to think about a trust, right, or to think about passing it through A will or something like that. But yeah, they can serve a great. Is a great tool for sure. That was a long answer for a short question. Sorry.

[55:54.3]
Thank you. We have a question in the chat from Justin. Do you want me to read it? Justin, do you want to go ahead and ask so we can ask it? So a thing that’s kind of roadblocking us is my husband is not born in Michigan and tried to amend a birth certificate after a passport was legally changed and everything else.

[56:20.6]
But now as we’re trying to do the estate planning and just hearing your. The talk about the dead name and so forth like that, we’ve been having issues with the State of Pennsylvania even amending it. And so as far as we. We’re based in Michigan and like using an attorney like you to help with our estate planning, do we have to use an attorney like yourself?

[56:43.0]
Are you able to help us with the issue in Pennsylvania or will we have to reach out to someone in Pennsylvania to do that? Yeah, that’s a complex situation. So the short answer is that laws are different from state to state and attorneys are licensed by the particular state.

[57:02.3]
So my license is a Michigan license. I not practicing law in Pennsylvania. If you came to me with the situation you described, what I would probably engage in is some reconnaissance to see if we could figure it out without the need to engage a Pennsylvania attorney.

[57:18.4]
But in terms of legal advice, I’m not providing legal advice outside of Michigan. And so if it gets, you know, and maybe we engage a conversation with a Pennsylvania attorney and ultimately hire that person to, you know, do the, the legwork, sometimes it’s manageable. I mean, the, the, the point you raised though is that even if you’ve solved something on the federal level, your passport states may choose to do something that is inconsistent with that.

[57:44.8]
And again, that’s, that is part of the problem with, I mean, you know, federalism and, and, and states being able to do different things. It is complicated. I mean, we only have federal birth certificates. We have state birth certificates though.

[57:59.8]
Right. So yeah, I mean, that’s the issue that we’re running into is even though it was changed federally and then we’re trying to do a state of Lake Michigan, will. Now we’re, that’s where the divide, unfortunately is for someone like us.

[58:18.7]
Right. And then it gets even more complex because you’re dealing with a name change scenario on top. And then, you know, and I don’t know if your name change occurred or the name change occurred. Yeah. In Pennsylvania or Michigan. Actually in Florida Even more interesting. Right.

[58:35.3]
So, I mean, I… Yeah, that’s, that’s in what they call, in the legal parlance, a mess. Yeah. I mean, you can send us your contact information, I guess, and we have to book an appointment. Yeah, I mean, happy to talk through it. I’m not sure the outcome or.

[58:51.4]
But I mean, here’s the thing, and I think this is fair to say, finding an attorney who is willing to dig in matters. Right. I mean, you know, the. And it’s true. And no matter the, you know, orientation of the person, the legal processes that we all engage in are complicated and they’re messy and they’re not always obvious.

[59:17.9]
And here’s the other thing that it is. They aren’t always the same. Even though you’re talking about the same, you know, problem, the. The outcome doesn’t always happen the same way. I mean, I had a client just recently who we, you know, a husband whose wife just died.

[59:34.1]
She left a very small bank account, and he filled out the form that was appropriate for the. The transaction, went to his primary bank, and they told him it couldn’t be done. And then we send them to another bank who deals with this all the time from other.

[59:51.6]
Another branch of the same bank that I deal with all the time and do this stuff. And they, of course, knew what they were doing and did it right away. I mean, that shouldn’t happen like that, but yet it does. Right. So. Well, I appreciate your time, too, and thank you so much again for your time today and being an advocate for the community.

[60:12.1]
It’s really appreciate it. My pleasure. No, I appreciate the opportunity to have the conversations. Are there other questions? And I realize we’re over time, so if the answer is we’re done, we’re done. But if there’s other people want to stick around, or I can stick around for a few more minutes if there’s other comments or questions.

[60:30.3]
No, the chat was just me. I just asked Justin if they were trying to submit paperwork before or if you change the birth certificate before or after submitting your passport. Because I just submitted my passport but didn’t have my birth certificate updated.

[60:46.1]
And I’m also worried about that because I also changed my name. So we’ll see. And it was not in Michigan. Mine was also in Missouri, which is also a red state. That’s a little bit complicated. So, Justin, I might be right there with you. It’s actually Jesse.

[61:01.5]
Well, I don’t know if you met Jesse, but he’s here. Hi. I got my passport done many, many years ago. And once upon a time when I tried to contact the State of Pennsylvania about changing my birth certificate, they didn’t even have an option for amending the gender.

[61:19.2]
So I was like, well, I’m not going to do that until I can do both name and gender at the same time. And then recently I attempted and they told me that the copy of the legal name change from the court was, they basically said it was a fake.

[61:38.0]
And so they just sent everything back to me and was like, you have to provide us with a sealed copy. And this, the county in Florida where I had the name change done does not do sealed copies. To this day, they still do not. And so I’m at a standstill.

[61:54.0]
Can you pass with one sex and birth certificate with another? So I mean, just one thought on that topic. You may be able, I mean, if the court won’t certify it, you might not be able to do this.

[62:09.4]
But there’s also a process called apostille, and that’s a… it’s done, it’s an international notarization of sorts. They’re conducted through the Secretary of State’s office in the different states.