Gabriel Cheong Law

This is another interesting read for today:

[The state’s highest court ruled today that a court can order child support payments from an unmarried father even after his death.]

There’s a really interesting article this week at Slate.  [An Affair to Remember:  She was 82.  He was 95. They had dementia.  They fell in love.  And then they started having sex.]

The article recounts the story of Bob and Dorothy who met each other at an assisted living community.  Just as the title says, they fell in love and started to have sexual relations.  Bob’s son, who was appointed Bob’s guardian (either through a court guardianship procedure or health care proxy), decided to put a stop to the relationship after walking in on his father and his new girlfriend having sex at the assisted living center.

If you read through the article, an interesting concept of a Sexual Power of Attorney comes up.  Dorothy’s daughter, who is an attorney, comments (maybe facetiously) that a Sexual Power of Attorney might allow the elderly to control their own sexual experiences when they reach a point of dementia.  I’m not sure how this sort of power of attorney would work and how you would designate a person to oversee your sexual future.  The concept however, is very interesting.

As I have said in previous posts, you should always designate someone to be your attorney-in-fact or proxy who you would trust your life with.  You need to trust this person not only to keep you alive when you’re in a vegetative state or to pay your health care bills when you’re incapacitated, but you also need to know that this person’s values and beliefs are in line with your own.  You need to be able to trust this person to make the same decisions you would make, or at least follow your intent and look out for your best interest.  I’m not sure Bob’s son in the article was looking out for his father’s best interest.  It seemed he was either trying to safe-guard his inheritance or to keep his father alive but lifeless to satisfy his own need to keep his father around.  Sometimes immediate family members are not the best people to designate for such important roles.

Gay pride week officially started in Boston last night with the raising of the flag at Government Center.  There will be a parade and a festival following it next Saturday, June 14th.  My firm will be hosting an informational booth at the festival trying to spread the word about the importance of an estate plan.

Massachusetts and (now) California are the only two states that allow same-sex marriages.  However, despite the two states issuing marriage license, most other states do not and will not acknowledge a same-sex marriage from those states.  And it’s not only the other states that won’t acknowledge same-sex marriage, but the federal government as well.  For this reason, same-sex couples face many challenges in an unequal system where they are recognized as married for some instances and not married for others.

A problem with this duality comes up, for example, in filing income taxes.  For a same-sex couple in Massachusetts, they file as married for state tax purposes but must file separate tax returns as single individuals on their federal tax returns.  This is not only an inconvenience but by treating same-sex married couples in Massachusetts as single, they are denying them the federal tax benefits of marriage.

Another example comes up when one of the partners in a same-sex marriage dies.  Federally, married couples can inherit from each other, estate tax free.  There is no limit to this exemption.  However, since same-sex married couples in Massachusetts (or California) are not considered married federally, they do not enjoy this privilege.  This might cause the surviving partner, in some circumstances, to pay a hefty estate tax and therefore lose the marital home or other assets.

Marriage is not only a term, a label.  Marriage comes with a lot of advantages, both financial and social.  Some of our laws are inherently based on the legal institution of marriage.  And when this government denies equal treatment and protections under its laws,  it is violating the Equal Protection clause of its Constitution.  As our own history has shown us, separate cannot be equal.  Since we have not learned from our history, let it be known and realized again that separate is not equal.

I want to announce the grand re-opening of my solo practice and new firm, Infinity Law Group.  This is also the grand reopening of Infinity Law Group itself.

Infinity Law Group was started in 2006 by Uyen Le Kry, Esq.  I worked for her during law school and she taught me so much about the practice of law, the value of good lawyering, and the drive to succeed.  She was also my first inspiration and role model in starting my own law firm.  Up until that point, I’ve never considered the possibility that there was more to the practice of law than being in-house counsel, associate at a firm, or working for the government.  She really inspired me to think more of my abilities and outside the box.

Yesterday we finally closed the deal on the firm and I am now the new owner of Infinity Law Group LLC.  We have both moved on to bigger and better things, as life should be.  I wish her the best of luck and I hope that I will be able to maintain and expand the good name that I’m inheriting.

Unfortunately, restraining orders (ROs) are common in family law practice.  They arise no only between boyfriend and girlfriends, but husband and wives, ex spouses and in-laws.  Some ROs are justified and some are clearly an act of malice against a former spouse or current lover.

ROs or Chapter 209A orders can prohibit the abuser from doing a number of things.

• No abuse - The court can order the abuser to stop abusing you or someone in your household
• No contact - The court can order the abuser to have no contact with you, either directly or indirectly
• Vacate - The court can order the abuser to stay away from your home or workplace by a specified number of yards
• Custody - The court can order that you have temporary custody of your minor children
• Support - The court can order the abuser to pay alimony and child support
• Damages - The court can order the abuser to reimburse you for expenses or damages incurred as a result of the abuse
• Impound address - The court can withhold your address from any court proceedings and keep it confidential from the abuser
• Treatment recommendation - The court can recommend the abuser to attend a treatment program but cannot order them to do so unless they have already violated a RO
• Surrender of firearms - The court may order the abuser to surrender firearms, licenses to possess firearms, or firearm identification cards.

ROs can be filed in either the district court, probate court, or superior court.  Superior Courts however are not equipped to handle ROs and are limited in their jurisdiction.  It is better to either file in district court or probate court, depending on your particular situation.  If you already have a case pending in the probate courts (divorce, custody, guardianship), then it is a good idea to file any ROs in the same court so everything can be adjudicated together.  ROs can also be filed at police stations after working hours.  These are emergency ROs and are only valid for a period of no more than 24 hours.  You are then required to appear in district court the following day to get an extension, and then 10 day after that in order to extend the RO to one full year.

RO hearings can be considered a mini-trial.  Issues such as burden of proof and production, rules of evidence and proper court procedures must be considered.  If your abuser has an attorney present at any of the RO hearings, it is a good idea to have an attorney of your own to help you defend yourself.  There are instances when your abuser can ask the court for a reciprocal RO and the court may grant Mutual ROs.  Because of this and many other reasons, you should have an attorney stand with you when asking the court for a RO.

Lastly, it needs to be said that a RO is simply a piece of paper.  It empowers police and the court to exact harsh punishment to an abuser for violating a RO but the piece of paper will not protect you if the abuser really wanted to hurt you.  If at any time, you feel in danger for yourself or your family, seek help through local police, hospitals, domestic violence shelters or counselors.  Only you have the power to protect yourself and your family.

This month’s ABA Journal Magazine had a really great article about the pros and cons of probate administration.  Probate is the court procedure that allows for the oversight of a deceased’s will and estate.  They make sure that assets and legacies go where the deceased wished it to go.

In recent years and even in my own practice, setting up ways to avoid probate has been some of my client’s main goals.  This is because probate can be an expensive and time consuming process for the potential heirs.  Attorney’s fees along with possible challenges to the deceased will can lead to delays and strife among family members.  As such, when possible, probate should be avoided.

Probate is a good vehicle, as the article states, for oversight when you’re in a particular situation that would benefit from oversight.  The article gives some examples and is well worth a read to practitioners of trust and estates.

Plotting Against Probate

A power of attorney (POA) in general is a legal document that allows someone else to speak and act on your behalf.  You give a power of attorney to someone who is then called an attorney-in-fact (as oppose to an attorney-at-law who are lawyers).  The uses of a POA are many.  Some people give POAs to their lawyers so that they do not have to be present for real estate closings when buying a house for example.  You can give a POA to someone to act on your behalf at a bank or any other institution.  A POA can be drafted as broad or as limited as you would like it to be.

Many people know of POAs but are confused about the different types and their uses.  As part of a comprehensive estate plan for anyone over the age of 18, I recommend a Durable POA as oppose to a Springing POA.  A Durable POA is exactly as the name says.  It is durable which means that it becomes effective immediately upon you creating the document and survives and stays effective even if you were to become incapacitated.  This is very useful when planning for incapacity.  While you are healthy and of sound mind, you can chose any person that you trust to serve as your attorney-in-fact in the event that you become incapacitated (either a coma or vegetative state).  A Springing POA on the other hand does not become effective when you create the document.  Rather, it “springs” to life only upon a certain event that’s designated in the POA, most often, it is your incapacity.  So in theory, if you were to be in a coma or in a vegetative state, your attorney-in-fact will then, and only then, have the power to speak and act on your behalf.

Many people ask me about Springing POAs and why I don’t recommend them.  They’re mostly afraid that if they create a Durable POA, their attorney-in-fact will abuse the privilege and use it inappropriately even when they’re not incapacitated.  First and foremost, you should only appoint an attorney-in-fact that you trust wholeheartedly with your life.  If you have any doubts about a person, then that person should not be appointed your attorney-in-fact for any situation.  Once your attorney-in-fact does something in your name, it is your responsibility and your name that attaches to that event.  Secondly, a Durable POA is always effective, which means that upon your incapacity, there needn’t be any question whether the POA is effective upon your incapacity because it is always effective.  A springing POA usually springs to life only upon incapacity which begs the question, who decides when you’re incapacitated?  There are provisions you can put in the POA to say that your incapacity must be certified by two or more doctors, but then it places the burden on your doctors and some either will not certify it fearing a violation of HIPAA or get wrapped up in your finances without a court order.  This leads to your appointed attorney-in-fact to go to the courts in order to be allowed to use the POA.  In an emergency, this defeats the whole purpose of having a POA.

Ultimately, I recommend and prefer the Durable POA over the Springing POA.  The issue still remains for some people with their concern that they do not want someone to be able to speak on their behalf while they have capacity.  In that case, I recommend that you execute the Durable POA but simply not hand one over to your designated attorney-in-fact.  Simply let your attorney-in-fact know where it is placed in your house, allow them access to your house, and tell them that if you were to become incapacitated to fetch it and use it.  Never store your POA in a safe deposit box because a bank will not allow another person to enter a safe deposit box without a POA, the very instrument that’s hidden inside the box.  Keep the POA in a safe place that’s within your control and that should solve both the issue of having a POA that will work when it’s suppose to and not giving your attorney-in-fact the power to act on your behalf while you still have capacity.

A health care proxy is a legal document that designates another person to make health care decisions on your behalf in the event that you cannot make those same health care decisions for yourself.  It is essentially a power of attorney for health care purposes.

Everyone over the age of 18 needs a health care proxy because we can all become incapacitated at a moments notice.  People do not know when they might become incapacitated or expect it but we can all plan for it.  The reason why children (people under the age of 18) don’t require a health care proxy is because their parents have the automatic authority to act on their behalf and make decisions for them.  As adults, we’re on our own.

What does incapacity mean? Incapacity could be any event where you no longer can communicate your desires.  This could be a vegetative state, persistent or otherwise, or a coma.  The health care proxy’s job is to tell the doctors what you would want, if you were able to communicate.  Ideally, a proxy should follow what you had laid out in your health care directive.  A health care directive is simply a document that lists what you would want or not want if you were ever to become incapacitated.  For example, many people do not want to be kept in a persistent vegetative state and therefore their directive would state that and give the proxy the authority to disconnect life support.  Without such a document and proxy, doctors and hospitals are very reluctant, without a court order, to “pull the plug”.

A prime example of an unexpected real-life event is the Terri Shiavo case back in 2005.  Terri was a normal woman who suddenly collapsed into a persistent vegetative state in 1990.  When all treatment and remedies had been exhausted, her husband decided that it would be better if Terri was no longer placed on life support.  However, Terri’s parents did not feel the same way and a costly and emotionally wrought legal battle ensued.  We have no way to know what Terri would have wanted if she had known what would happen to her back in 1990.  However, if Terri had had a health care directive stating that if she were ever to be in a vegetative state she would like to be removed from all life sustaining equipment and named her husband as her health care proxy, the costly law suit would never had taken place.  Terri’s husband would automatically be allowed to make her health care decisions for her, even if it meant ending her life.

Terri Shiavo’s case is just one example of how useful a health care proxy could be and how important one is when the unthinkable happens to us.