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Why do Same-Sex Couples Need Durable Powers of Attorney?

We're very pleased to present the third in a series of articles about legal resources for same-sex couples.  They will be posted every Wednesday.  Our goal is to make sure that your gay or lesbian family is protected, both as you plan your gay wedding and continue your lives together.  The article below was written by Claire Bartholome, who in addition to being an estate planning attorney, is also a client of 14 Stories.

Like all couples, same-sex couples want to act as one – to be able to represent one another and make decisions on each other’s behalf.  For same-sex couples, however, there is the added importance of recognition across state lines.  Even if a couple is married in Massachusetts, Connecticut, Vermont, New Hampshire, or Iowa, transacting business beyond state lines, on behalf of a same-sex spouse may not be possible without a valid Durable Power of Attorney (DPOA).

Here are some reasons why a DPOA is a useful tool especially for same-sex couples:
  • Transacting business.  A DPOA allows a named agent to act on behalf of an individual with regard to bank accounts, property, and other assets.  By naming your same-sex partner/spouse as your agent, you ensure that regardless of marital status, your partner/spouse has the authority to act on your behalf, in your home state and around the world.  
  • Outlining specific powers. A DPOA can be narrowly tailored to include only the powers you wish your agent to have, or it can provide blanket authorization in all financial matters.  There are many instances, however, in which a blanket authorization is not enough to ensure that your agent has the right to act on your behalf.  Many banks/institutions/government agencies require specific language of authorization.  This is why it is vital that a DPOA be tailored to your exact needs and reflect your exact wish.
  • Precluding guardianship/conservatorship.  Should your spouse become unable to make decisions with regard to finances and related matters, authority under a DPOA allows you to step into his or her shoes.  This arrangement precludes the need for a court-appointed guardian/conservator, which would otherwise be necessary to gain control and can be both costly and time-consuming.
  • Evidence of intent.  Like a Health Care Proxy for medical decisions (see last week’s post), a DPOA for finances provides further evidence of your intent to rely on your same-sex partner/spouse in the same way that opposite-sex spouses traditionally rely on one another.  If there is any possibility that your family members would seek to challenge your wishes and declarations, a DPOA is another very powerful piece of evidence against their claims.
  • Because laws do change.  While no viable challenges to marriage equality in Massachusetts loom on the horizon, the entire country remains a battlefield for same-sex couples.  State and Federal laws may change for the better or worse.  Naming your spouse as your health care proxy, can provide protection in an uncertain future.
    Claire Bartholome is an Attorney with the Law Office of William J. Brisk.  Her practice specializes in estate planning for same-sex couples in order to combat discrimination, legal challenges, and prejudice.  This information is not intended to provide legal advice.  For information as to how the laws apply to your specific situation, consult an attorney.


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