The Most Important Estate Plan
As they always do, memories of the winter holiday season are quickly fading, as my email is flooded with messages about keeping resolutions, new lawyer marketing tactics, and the latest “ABCDEF… Trust” to tell clients about. (Estate Planning attorneys love our acronyms!) But there’s one memory I am determined to keep. During the “holidaze,” I catch-up with my reading for pleasure and one of the catch-up books I read was the mesmerizing, bittersweet, poignant, non-fiction narrative, “The Warmth of Other Suns” by Isabel Wilkerson. The reading resonated deeply as it retold stories about African Americans traversing from Jim Crow South to the subtle but damning discrimination of the North and West. Particularly, being just 1 generation removed from the Great Migration’s heroes and heroines who found themselves settling in Chicago, I was, like many readers, warmed when I could say my Aunt lived on the same street as Ida Mae. Reading Ms. Wilkerson’s work took me simultaneously far from and close to my practice. (And I was supposed to be on vacation!) Almost inhaling every page, grateful for not having to respond to emails, I hung my head in sympathy for George who, but for misdirected anger and lack of self-discipline, would have achieved so much more. I knew a George. And I nodded, indeed, as I travelled through the book with Dr. Foster, who ventured from the community spreading the fact that “yes, we can” to communities that dare us to try. Indeed, he understood that we, African American professionals, must not turn our backs but must reach forward to serve our community regardless of the economic gap that exists between us and our community family. Indeed, we must reach back and forward with deliberate and sometimes, an unnerving strive for perfection, even though individuals in our own community may not believe we are as skillful as those of other cultures. We hold our heads high, reaching back and marching forward because, in fact, we may be more skilled and knowledgeable because we had to (and often, still do) work twice as hard, under twice the constraints, to pay twice the costs, to receive half the pay, and when you work that hard, you learn a lot more than the average above-average student. And at the end of the holiday break, I returned to my email flood, packages of supplies, impossible calendar, and a myriad of phone messages but with a renewed and refreshed understanding about my law practice. Indeed, a legally sound financial foundation and distribution scheme is important; and equally important is the “this is how we got here and why and how some of us didn’t and why we must also never forget their journey” legacy. Much in estate planning and wealth-building is written about the elimination of family wealth by the third generation. But, just because something happened in the past, doesn’t mean it must occur again. More importantly, estate planning isn\’t just about helping gazillionaires save on taxes. Consider that children and, therefore, families often benefit from the musculature that is strengthened when elders share the trials and tribulations and exemplify the fortitude that propels the family forward. They learn lessons of perseverance, delayed gratification, and respect for self and others; they grow to enjoy working for work itself and not just for the compensation; and they become community leaders and “unsung heroes” because of this almost impervious integrity breathed into them by their parents and grandparents. They learn compassion and empathy. I often smile as our estate planning world buzzes so about how to assist families who no longer need estate tax planning as a component of their estate plans. What to do? What to do? As an African American, female, estate planning attorney, I’ve known what to do for a while: help people legally forward on their most important legacy – the family journey, the who, the how, and the why of “the dream.”
Love Knows No Discrimination… aka Marriage Equality Snakes Pt 3
In the springing steps of new love, newlyweddedness, and newborns, we become absorbed with, like my spouse likes to say, the “bubble and squeak” of it all. And as the bubbles grow fewer and the squeakiness turns to creakiness in the golden and platinum years, we start to plan our farewells and what that should look like in honor of our loving relationships. That planning is sometimes truncated by accelerated medical challenges but more often than not, the planning is executed without much challenge. Loved ones are able to celebrate the dearly departed in dignity and honor and friends and family join in the celebration and do what they can to console and uplift the grieving. That is, this is the farewell achievable for couples who resemble couples of 40 years ago. For LGBTQ couples, who are even lawfully married, post Obergefell, planning farewells is often not that easy. The heartbreaking story of Jack Zawadski and Bob Huskey illuminates this additional post-Obergefell challenge: Jack and Bob were a loving couple of more than half a century. Upon retirement, they moved from Colorado to Mississippi and were married in 2015, shortly after the Obergefell ruling. Before moving to Picayune, Mississippi, Bob was diagnosed with a cardiac condition that worsened to the point that, ultimately, during the last few years of his life, Jack became his caregiver. A year after marrying, the couple acknowledged that Bob’s death was imminent. He was eventually placed in a nursing home near the couple’s community in Picayune. So Jack could focus on his last days with Bob, John, Bob’s nephew and dear friend of the couple, took on the responsibility of searching for a funeral home that could provide services in Picayune. Services in their community meant Bob’s body would not have to be transferred far and the couple’s friends and family could focus on helping each other through the grieving period. Searching online, John found the Brewer Funeral Homes. He contacted the Funeral Home and entered into a verbal agreement with the owners, Ted and Henrietta Brewer, for their services. The parties agreed to price, logistics of signing the paperwork, transportation of the body, and disposition of remains. The Brewers told John that they just needed the nursing home to contact them when Bob died and everything would be properly handled. The funeral home’s paperwork required the signature of next of kin. Bob died and Jack signed the paperwork as surviving spouse. When the Brewers received the paperwork indicating Jack was next of kin as surviving spouse, that they would be servicing a gay couple, they absolutely refused to provide the agreed upon services. John eventually found services 90 miles away. However, Bob’s body had to be moved from the nursing home before that service was available, so another funeral home was required to be involved to “hold” the body. Furthermore, because everything was last minute and far away, friends from Picayune couldn’t attend the services. Needless to say, this is not what Jack and Bob had wanted. So Jack and John sued the funeral home, alleging Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Breach of Contract, and Negligent Misrepresentation. Unfortunately, Jack died in December of 2017 and a petition was filed to substitute John as a plaintiff. Then Masterpiece Cakeshop was decided… However, another case was decided a few days after Masterpiece Cakeshop that may have truncated its reach and another legislative attempt to undermine the rights of LGBTQ families was recently thwarted. So, more to come. For now, we hope that people realize that estate planning isn’t just about getting valid instruments in order, especially if your family doesn’t resemble the other 80% of American families. This is the third part of a series, Marriage Equality Snakes, examining jurisprudence that undermines the rights of LGBTQ couples to marry and have families. Part 1 ~ Part 2
Properly Caring for Great Grannies
One of my most cherished childhood memories is of my great-grandmother sitting on her single, long braid, in her rocking chair, as I patted her hand. She would quietly rock in the sun room of my grandmother’s home, her soft brown eyes staring out the window. She never said a word, which was fine with me. I was told that at one point during her life’s journey, she just stopped talking. Since my baby sister had just been born, I appreciated the solace of quiet and not speaking. So Great Granny and I would just sit in silence together and let the sun warm our faces until… I walked into the sun room one day and she was not there. Gone. Forever. In heaven. Recalling that memory from an estate planning attorney’s perspective helps me realize how very fortunate our family was. Great Granny was only mentally incapacitated, and her incapacity did not present itself in aggressive or belligerent behavior. Equally important was the fact that our family had all the resources needed to care for Great Granny 24-7. Many families who regularly reach out to our office are not so fortunate: Since those years long ago, our country has experienced economic peaks and valleys and the State of Illinois has entered an economic abyss. Thus, if an older parent becomes incapacitated today, in Illinois, and the family has limited means, the parent and, indirectly, the family will likely confront difficult circumstances, at best, unless a plan consisting of comprehensive Advanced Directives, at the very least, is in place. Often, as parents age without a plan, children will download and prepare Powers of Attorney for healthcare or finance but these documents rarely provide the protections needed to establish the kind of care aging loved ones require, especially those who may be confronting incapacity. Additionally, the way mental incapacity presents may preclude loved ones from taking the most important initial step – obtaining a mental health assessment from a doctor. So, if anyone wonders why estate planning is so critical, think of it in the following ways. Comprehensive plans, established before sundowning, prevent loved ones from: (1) starting fatal home fires; (2) causing family poverty; and (3) causing themselves and the family unnecessary trauma of other sorts. In other words, proper planning protects parents, families, and grandchildren’s cherished memories.
5 Years and 5+ Lessons!
It\’s true; \”time flies when you\’re having fun!\” So The Law Offices of Max Elliott is looking forward to 5 more years of \”fun\” or, more precisely, taking great satisfaction from servicing our clients as diligently as possible, protecting them, their interests, and future generations. To prepare this \”Anniversary\” piece, I reviewed our inaugural article to determine if 5 years\’ experience would cause me to change any of the positions I held at the beginning of this sojourn. One: A young married couple with a home, moderate income, and no dependents AND no wonky family dynamics could likely have a will prepared online. However, I would still recommend that an experienced attorney in their jurisdiction review it. With that exception – and the fact that I need a new photo, I agree with me on everything else. Okay, now what? What are additional takeaways from 5 years as an attorney providing wills, trusts, advanced directives, guardianship assistance, adoptions, negotiations between beneficiaries and fiduciaries, winding up estates, and wealth preservation guidance? Families need to talk more and talk sooner, reaching across the generations to gather history, empathy, and love. Today\’s world is too unpredictable and many of the squabbles are based on a lack of understanding because we haven\’t taken the time to actively listen to our loved ones. AND tolerance goes a long way. Most lawyers need to listen way more, talk way less, and be willing to educate and collaborate with our clients. Just because we\’re in the 21st century doesn\’t mean that 20th century values involving civility, integrity, and reasonableness should be not applicable in all of our professional relationships. Technology cannot send you a referral and cannot sooth the emotions of a disillusioned client. If I cannot bring my integrity into your sandbox, I can be happy playing in another sandbox, regardless of the plastic toys offered. Life is precious. Breathe, laugh, and yes, smell some flowers. The Plus: It is awesome being in on amazing, wonderful, legal change. When our office launched during Pride month in 2011, we were in the battle for marriage equality and 5 years later – it is the law of the land! \”NO MO DOMA!\” is a reality and, while the fight for rights in the LGBTQ community along other very important lines still goes on, the LGBTQ community and its allies, such as our firm, can rest a tad easier now on the marriage equality front. What an awesome 5th Anniversary Gift – Happy Pride Month! I don\’t want to name names but let it be sufficient to say that our firm has had amazing supporters from all walks of life during these last few years. It is our hope that we continue to learn and grow and provide the services that make our supporters proud and clients happy. Thank you all and here\’s to the next 5!
Zen and the Art of Dying Well (Video)
The Wait Is Over: All Americans Are Free to Wed
In a plurality Opinion authored by Justice Anthony Kennedy, today, June 26, 2015, the United States Supreme Court ruled in favor of marriage equality for the country. Removing any doubt that states that did not support same-sex marriage would be able to continue to discriminate against LGBTQ couples, in Obergefell v. Hodges, the Court provided that states must (1) recognize same-sex marriages that were lawfully performed, even if outside of their states and (2) states must issue marriage licenses to same-sex couples. Accordingly, if a state did not recognize or did not provide for same-sex marriages before, it must do so now. The Court’s rationale for its ruling considered 4 principles: (1) personal choice; (2) the status of marriage; (3) the protection of children; and (4) the stability of America’s social order. This 27-page Decision downloaded here, followed by 76 pages of dissent, is based on the fundamental right to marry, which is undergirded by the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. The holding is as eloquent as it is just: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The 62 pages of dissent begins with Chief Justice Roberts, who argues that the acceptance of marriage equality will be much more difficult to achieve because of those who were and are against marriage equality will be chaffed by the fact that their opinions are now irrelevant in the eyes of the law. He analogizes the coming “cloud” over marriage equality to that of the cloud over racial equality. It is a point well taken but, respectfully, the Chief Justice is ignoring the fact that a long-standing responsibility of the Court is to provide equality in the law where inequality exists for those who have been marginalized. The fight for social recognition, of course, is not over. However, being equal with respect to the law does not require social acceptance. Justice Scalia argues that America’s democracy is now in jeopardy. His dissent is not unusual in that he disagrees with the Opinion on the grounds of Constitutional literalism and states’ rights. It is unusual in that he equates the Court with God but then states that the Court, or the 5 activist judges comprising the majority in this Decision, is acting out of hubris. His opinion that 135 years of precedent has been overturned is quite remarkable, itself. Justice Thomas is also in his usual form, reiterating Justice Scalia’s remarks but offering for good measure a nod to the Magna Carta that just celebrated its 800th anniversary and the philosopher John Locke. The final and most brief dissent, authored by Justice Alito, is a rejection of the new norm or “orthodoxy” as J. Alito terms it. Notwithstanding the dissents, as C.J. Roberts stated, the argument – at least legally – is over; and to quote J. Kenned, “It is so ordered.” We do.
What If I\’m Neither: More Non-Financial Planning Pointers for Transgender & Queer Persons
This is the 5th in our segment on estate planning for the T & Q of the LGBTQ Community… Most people will agree that family battles are what make estate planning “sexy.” Forget about the smart tech wizards who create subtrusts and the stability that goes with it; Philip Seymour Hoffman’s story, may he rest in peace, is much more interesting. However, squabbles – or wars – in families of straight married couples may benefit on settled law and when the legal issue is murky, experienced judges are readily available. Neither settled law nor experienced judges are generally available when addressing family dynamics for transgender or queer couples. So, a transgender or queer person’s first line of defense against contentious family members is their trusted advisors. Attorneys must be able to identify potential conflicts of interest and manage confidentiality with aplomb. Conflicts of interests involve understanding who our client is, e.g., are we representing Dana as an individual or Dana and Chris as a couple. Equally, if not more important is the issue of confidentiality. What information have we been given permission to disclose, to whom, in what manner, and when. For example, can Bobbie’s mom know that Dana was born male? The employer? The children? With respect to a will or trust, below are a few key concerns in light of family dynamics. Disinheritance. Family members who are contentious can always be written out. Fiduciaries. Would you want a family member who has always been a tad combative acting on your behalf? Digital assets. Only close loved ones should have access and control to the digital assets, especially personal email and social media accounts; otherwise, such assets should probably be deleted or destroyed. It’s nobody’s business when Dana or if Dana had sexual reconstruction. As with all testamentary documents and trusts, the critical administrative provisions are also critical areas where instructions should be included with respect to communicating information, fiduciary selections, and more. Another broad category under non-financial considerations is lifestyle intentions, i.e., travel and retirement in particular. Again, the overall issues are similar to straight married couples. However, the nuances are what distinguish planning for straight married couples from planning for transgender or queer couples. For example, today’s society is very mobile and clients are becoming more informed about a little of what we do, which is dangerous, especially if they don’t consult local lawyers about what they have learned. So, when considering lifestyle intentions and non-financial estate planning considerations, planning should include the following considerations. Vacations. Vacations should not be ruined because, while being treated for an allergic reaction, the client’s spouse can’t visit them. Relocation from Illinois or Cook County to an unfriendly jurisdiction. Though this may not be necessary, soon. Perhaps employment, grandchildren, or retirement has provided a desire to move. While many attorneys are only licensed to practice in one or two jurisdictions, any lawyer serving the LGBTQ community on issues related to family should have a thorough understanding of the national jurisdictional landscape with respect to marriage equality. For example, what does the jurisdiction say about children of married couples who are not adopted; what is the landscape for transgender rights? Does the retirement community or municipality to which the client plans to retire or visit as a snowbird provide healthcare treatment for transgender or queer persons? Is the community friendly to transgender or queer elders? The more unfriendly the jurisdiction, the more “right and tight” as Justice Ginsburg says the estate plan must be for those who travel or plan to relocate but retain property in Illinois, and especially for transgender and queer persons. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4 | Part 5
Protecting You and Yours Even if You\’re Neither…
Recognizing and hoping that this series may be moot in 6 months, when SCOTUS hears cases from Ohio, Michigan, Kentucky, and Tennessee that involve state bans on same-sex marriages, in the interim, planning for those who may be \”neither\” is important. The following are remarks from a presentation I gave in the fall of 2014 at the Illinois Institute for Continuing Legal Education: What if I\’m Neither: Estate Planning for Transgender and Queer Persons. In striking down Section 3 of the so-called Defense of Marriage Act (“DOMA”), SCOTUS’s U.S. v. Windsor ruling delivered a great victory to the LGBTQ community and especially to the L, G, and B persons and couples. However, the rights afforded this and other marriage equality victories were still questionable for certain couples, specifically those whose parties included transgender or queer persons. So estate planning for the entire LGBTQ community still required a thorough understanding of the laws, rules, regulations, and opinions involving both marriage and gender equality. A big issue for lawyers is understanding “who” our clients are. If this is important to us, it’s crucial for our clients because if the lawyer doesn’t get it; then you clients should find a lawyer who does. Identifying who is the client, can be reduced to a simplistic answer is we use Illinois law. Section 10(c) of The Illinois Religious Freedom and Marriage Fairness Act (“Illinois Marriage Fairness Act” or “Marriage Fairness Act”) provides: Parties to a marriage shall be included in any definition or use of terms such as “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” “wife,” “husband,” “bride,” “groom,” “wedlock,” and other terms that refer to or denote the spouse relationship, as those terms are used throughout the law, regardless of whether the parties to a marriage are of the same sexes or different sexes. As you can see, this section of the Marriage Fairness Act completely removes gender orientation as a factor in determining marital relationships and the accompanying rights, burdens, benefits, and obligations for Illinois citizens. If gender is removed from the marital relationship formula, then what’s left? Who are the parties? Who are the clients? Simple: Persons. The individual who is sitting at the conference room table seeking our help is a person. The individual may be a transgender person or queer, but he, she, Dana, or they is (and, in this case, the grammar is correct) a person first, deserving of the respect, dignity, and excellent service provided any client. In other words, if a lawyer doesn’t recognize a potential client as a person, then that person shouldn’t recognize that lawyer as competent to serve the potential client’s needs. Estate Planning for the T&Q of the LGBTQ Community: Part 1 | Part 2 | Part 3 | Part 4
Protecting Families Globally…A Remarkable Colleague
Jennifer\’s Story – A Fiduciary\’s Tale, Part 3
If you’ve been following Jen’s story, you know that Bill’s, her father, condition was made worse by secondary emergency procedures instituted upon Alex’s, Jen’s brother, instructions to the ER doctors. This was an emergency; Jen was 30 minutes away; and the records were 10 minutes from being received by the ER. When the records arrived, it was clear from all of the advanced directives that Alex was not considered a fiduciary or personal representative. He was not to be given any information whatsoever. And as mentioned in the previous article, the information needed to prevent the complication that Bill suffered arrived 10 minutes after Alex had given the doctors the green light. In this case, because there was no third back-up to Jen and no way to contact her, the secondary steps taken could not have been avoided. The doctors proceeded with their hospital’s policy and that may not have been avoided even if Alex said he wasn’t a fiduciary. In emergencies, the difference between life and death can be seconds sometimes. So if Bill doesn’t fully recover or recover at all, the ultimate responsibility for his disability or death will likely sit with Bill for not naming a third back-up. The guilt will, however, rest heavily on Jen and possibly Alex. However, the doctor who spoke with Alex isn’t completely exonerated. Once the doctor saw who was designated on the advanced directives, which included the HIPAA forms, to receive Bill and Carla’s personal health information, the doctor should not have had any further conversation about Bill’s condition with Alex. Nevertheless, he continued speaking with Alex and sharing Bill’s medical history, contrary to law. Privacy provisions under HIPAA prohibit sharing personal health information with anyone, even next of kin, unless the person is designated as a personal representative on the form. Needless to say, Jen became even more distraught when she spoke with her attorney. Now, Alex has faded into the ER waiting room background and Jen is visiting with Carla, whose condition has improved to stable. Jen can’t tell Carla about Bill though and is contemplating the worst case scenario for Bill. Still, as Jen sits quietly while Carla sleeps, Jen reviews one document that provides a sliver of peace of mind at least for her parents, though the doctors probably won’t understand. But they don’t have to; families have their own overall personalities as these doctors will find out and the law is the law. More to come… Jen\’s Story – A Fiduciary\’s Tale, Part 1 | 2 | 3