About Me

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Beaverton, Oregon, United States
I'm an attorney at Aaby Family Law in Beaverton, Oregon. (www.aabyfamilylaw.com) I practice probate and estate planning, including estate planning for same sex couples. kgapinski@aabyfamilylaw.com

Wednesday, February 20, 2013

Power of Attorney FAQs

(Please note that this guide applies only to Powers of Attorney in the State of Oregon.)

Q: What is a power of attorney?

A:  A power of attorney is a legal document, appointing a person to manage your finances.  This person is called an “agent.”  
Q: What can a power of attorney authorize my agent to do?

A:  You can make your power of attorney as broad or as narrow as you choose.  If you do not limit the power you give to your agent, this is called a “general” power of attorney.  If you limit the power of your agent, this is called a “specific” power of attorney. 
A power of attorney can be for the purpose of allowing an agent to sell your home, make withdrawals from a specific bank account, or pay your bills while you are out of the country, for example.  It can be as broad as to allow your agent to manage all of your finances, change beneficiary designations on your financial accounts, and make gifts on your behalf.

If you execute a general power of attorney, the person you appoint as your agent can become a clone of you for financial purposes.  They have access to your financial accounts and can manage your assets and property and collect insurance or benefits on your behalf, among other things.

Q: Do I need a power of attorney?

A: It’s a good idea for every adult to have a power of attorney.  In the event that you become incapacitated, you will have already appointed someone to manage your finances.

If a power of attorney authorizes your agent to act in the event that you become incapacitated, this is called a “durable” power of attorney.  A power of attorney is automatically durable unless you specify that it is not.

Q: What happens if I don’t have a power of attorney?

A: If you don’t have a power of attorney and you become incapacitated for a period of time, a loved one may need to ask a court to be appointed “conservator” to be able to manage your finances.  A court then oversees this process and tells your loved one what they can and cannot do with your property.  If you are incapacitated, you do not get to choose the conservator.  A power of attorney ensures that you get to choose who you want to be in charge of your finances and you get to say what they can and cannot do.

Q: When does a power of attorney go into effect?

A: In Oregon, a power of attorney can go into effect when you sign it or it can go into effect at a date or event that you specify.  For example, you may specify that the power of attorney does not go into effect until you are financially incapable.  A power of attorney that does not go into a effect until a certain event happens is called a “springing” power of attorney.

Q:  If I have a power of attorney, can I still manage my finances?

A:  When you execute a power of attorney, you do not give up power over your finances, so long as you have the ability to do so.  Your agent, however, will also have this authority.  This is why it is very important to choose someone you trust to be your agent.

Often people execute a power of attorney as a precaution in case they become incapacitated.  They speak to their agent and let them know that they do not want them to manage their finances until they become incapacitated.

Q: How long does a power of attorney last?

A: A power of attorney can last for any period of time that you specify.  If you do not specify when the power of attorney ends, it will end at your death. A power of attorney cannot continue after you die.

You can also revoke your power of attorney at any time that you are capable.

Q: How do I revoke my power of attorney?

A: You can revoke your power of attorney in writing.

Q: Where can I get a power of attorney?

A:  You can hire an attorney to draft a power of attorney for you.  You can also purchase a power of attorney at a legal stationery store or download a form from the internet.

Q: Do I need to hire an attorney to draft a power of attorney?

A:  You do not necessarily need an attorney to draft a power of attorney.  However, because a power of attorney can be such a powerful document, it’s important not to sign it without understanding what it means and making sure that it will do what you intend.  You should have an attorney review your power of attorney before signing.

I hope this answers any questions you may have about Powers of Attorney.  Please do not hesitate to contact my office, Aaby Family Law: 503.646.2501 or e-mail me: kgapinski@aabyfamilylaw.com, if you have any further questions.

Tuesday, February 12, 2013

Advance Directive FAQs

(Please note that this guide applies only to Advance Directives in the State of Oregon.)

Q: What's an Advance Directive?

A: An Advance Directive for healthcare is a legal document designating a health care representative to make decisions for you when you become incapable of making these decisions yourself.

You can also give your health care representative specific instructions, such as whether you want life support or tube feeding, for example.

Q: Who can be my health care representative?

A:  There are some exceptions, but generally speaking, you may name any capable adult as your health care representative.

People who may NOT be your health care representative are outlined in ORS 127.520.

Q: I'm not sick.  Do I need an Advance Directive?

A:  It's a good idea for every adult to have an Advance Directive.  No one plans to get sick or get into an accident.  An Advance Directive makes your wishes clear to your loved ones and leaves no ambiguity about what medical treatments you may or may not want.

Q: What happens if I don't have an Advance Directive?

A: If you do not have an Advance Directive and you are incapable of making decisions for yourself, an adult relative or adult friend may be designated by the hospital to make decisions for you. ORS 127.760.

If you are in a terminally ill, permanently unconscious, of if life-sustaining procedures would not benefit your medical condition and would cause permanent and severe pain, your health care representative will be the first of the following:

(1) A guardian, if you have one;
(2) Your spouse;
(3) An adult designated by the others on this list, if no person on this list objects;
(4) A majority of your adult children who can be located;
(5) Your parents;
(6) A majority of your adult siblings;
(7) Any adult relative or adult friend.

ORS 127.635.

Q: I am in a same sex couple.  Can I get an Advance Directive naming my significant other as my health care representative?

A: Yes.  Any capable adult can execute an Advance Directive.  Advance Directives are especially important for same sex spouses.

If you are not registered partners and there is conflict with your spouse's family, under the law, they have the authority to be your partner's health care representative.  (Please see the priority of health care representatives above.)

If you have an Oregon Registered Domestic Partnership (after 2008), then you should be treated as a spouse by the hospital.  However, it's a good idea to have an Advance Directive as a back up for several reasons:

1) Oregon Registered Domestic Partnerships have only been available since 2008 and are therefore relatively new.  If you encounter a hospital or doctor's office that is not current on the law regarding same sex couples in Oregon, you may meet some resistance.  Consider an Advance Directive another layer of legal protection.

2) If you travel to a different state that does not recognize your  Oregon Registered Domestic Partnership, you should have an Advance Directive.  E-mail it to yourself, store it in the cloud, or travel with a hard copy of the document.  You should be able to access it wherever you are.

Q: How does divorce affect my Advance Directive?

--> A: If your spouse is named as your healthcare representative and you file a petition for divorce, your Advance Directive is automatically suspended. ORS 127.545(7).

It's a good idea to execute a new Advance Directive when you file for divorce or finalize your divorce.

Q: When does the Advance Directive go into effect? 

A:  Your health care representative can only make decisions for you when you are incapable of making them yourself.

"Incapable" means that in the opinion of your attending physician, you lack the ability to make and communicate health care decisions to health care providers.  ORS 127.505(14)

The Advance Directive is no longer in effect once you regain the ability to make decisions for yourself.

Q: How long does an Advance Directive last? 

A:  An Advance Directive can last for any amount of time that you indicate or until your death.  If you do not limit the period of time that the advance directive lasts, it will last until (a) your death or (b) the advance directive is revoked or suspended.  ORS 127.510(3).

Q: How do I revoke my Advance Directive? 

You may revoke your advance directive at any time and in any manner when you are capable.  ORS 127.545(1)(a).  

Revocation is effective when you tell your attending physician or your health care provider. ORS 127.545.

Executing a new advance directive revokes any prior advance directives. ORS 127.545.

Q: Where can I get an Advance Directive? 

A: You can get a free Advance Directive through the Oregon Department of Business and Consumer Services: here

Q: Do I need an attorney to fill out an Advance Directive?

A: You do not need an attorney to fill out an Advance Directive.  However, you should read the instructions very carefully when you are filling it out.

The Advance Directive must be witnessed by two adults.  Each witness must sign the form.  One of the witnesses must by a person who is NOT (a) related to you by blood, marriage, or adoption, (b) a person who would be entitled to any portion of your estate upon your death, or (c) an owner, operator, or employee of a health care facility where you are a patient or resident. ORS 127.515(4).  Your health care representative or attending physician may NOT be a witness.

It's also important to know that your Advance Directive does not go into effect until your health care representative accepts the appointment by signing the Advance Directive.  ORS 127.525.

If you would like an attorney to help you fill out your advance directive, please feel free to call my office, Aaby Family Law: 503.646.2501 or e-mail me: kgapinski@aabyfamilylaw.com

We will help you fill out and execute an Advance Directive for a flat fee of $100.00.  

If you are a first responder, member of the military, or veteran, we will help you fill out an execute your advance directive free of charge.

Q: What should I do with my Advance Directive once I have filled it out?

A: After you have filled at your Advance Directive, it is a good idea to:
  • Provide your primary physician with a copy that they can keep on file;
  • Keep the original in a safe place, such as a file cabinet in your home;
  • Let your health care representatives know where they can find the original;
  • E-mail a copy to yourself so that you can access it anywhere; and
  • E-mail or provide a copy to your health care representatives.

I hope this answers any questions you may have about Advance Directives.  Please do not hesitate to contact my office, Aaby Family Law: 503.646.2501 or e-mail me: kgapinski@aabyfamilylaw.com, if you have any further questions.

Monday, February 11, 2013

Pentagon announces extension of benefits to same sex partners

 Here are the benefits that outgoing Secretary of Defense Leon Panetta announced today, copied and pasted from this FAQ at OutServe-SLDN:

What benefits will be available?

Family Well Being Programs

  • Hospital Visitation* (extended by member designation)
  • Commissary Privileges* (extended via ID cards)
  • Exchange Privileges* (extended by via ID cards)
  • Morale/Welfare/Recreation (MWR) Programs* (extended via ID cards)
  • Surveys of Military Families (extended via DEERS)
  • Quadrennial Quality of Life Review (extended via DEERS)
  • Emergency Leave*
  • Emergency Leave of Absence
Child and Youth Programs

  • Youth Sponsorship Programs*
  • Youth Programs*
  • Child Care*
Family Support

  • Family Readiness Groups (extended by member designation)
  • Family Center Programs* (extended via ID cards)
  • Identification Cards*
  • Sexual Assault Counseling Program
  • Joint Duty Assignments
  • Exemption from Hostile-Fire Areas
  • Legal Assistance
Travel and Transportation

  • Space-Available (Space-A) Travel on DoD Aircraft* (extended via ID card)
  • Transportation to and from Certain Places of Employment and Military Installations* (extended via ID card)
  • Transportation to and from Primary and Secondary School for Minor Dependents* (extended via ID card)
Survivor and Death Benefits

  • Authority of Service Secretary to Transport remains of Dependent*
  • Disability and Death Compensation for Dependents of Service Members Held as Captives*
  • Continued Payments to Dependents of Service Members listed as Missing Persons
* Indicates that the benefit would also be available to the children of same-sex spouses

Gay and lesbian military members will need to sign a "Declaration of Domestic Partnership" in order to receive the benefits.

The Department of Defense believes this change will take about 8 months to implement.

Certain benefits are not being extended because they are not allowed under the Defense of Marriage Act (DOMA).  The constitutionality of DOMA will be heard by The Supreme Court in March 2013.

Thursday, February 7, 2013

Partner Benefits Expected to Be Extended to Gay Military Personnel

Secretary of Defense, Leon Panetta

News from Advocate.com: Leon Panetta, Secretary of Defense, is expected to announce that the military will be extending more benefits to same sex partners of military personnel.  This comes 16 months after the repeal of Don't Ask Don't Tell. The benefits could include housing, military ID cards, legal services, privilege to refuse to testify against spouses, and access to commissaries and exchanges.  Read more about it here.

Wednesday, February 6, 2013

The Importance of Estate Planning for Same Sex Couples

Every adult should have an estate plan.  However, estate planning is especially important for same sex couples, who are not afforded the same rights as opposite sex couples under federal law and many state laws.  In Oregon, same sex couples are offered some protection by the Oregon Family Fairness Act (OFFA), which went into effect February 4, 2008.  

The OFFA provides that same sex couples may enter into a Registered Domestic Partnership in Oregon.  Each member of the couple must be at least 18 years old and at least one of them must be an Oregon resident.  The OFFA provides that Oregon Registered Domestic Partners are afforded the same rights and responsibilities under state law as if they were an opposite-sex married couple.  Any place in Oregon law that gives a right to opposite sex spouses, gives the same right to same sex registered domestic partners.  (However, this is not marriage.  It's not equal.  Oregon will only recognize marriage between a man and a woman.)

For more information on the Oregon Family Fairness Act, check out Basic Rights Oregon's Domestic Partnership Resource Guide


You can also read about it in this Oregon State Bar bar bulletin article by Janine Robben.

Since Oregon treats registered domestic partners the same as married opposite sex partners, why is estate planning important for same sex couples in Oregon?

There are several reasons:

1) A same sex couple may decide, for a variety of reasons, not to become registered Domestic Partners in Oregon.  In this case, they have no legal protections unless they create legal protections by planning. 

2) The Oregon Family Fairness Act is relatively new.  Places like banks, hospitals, and funeral homes may not know about it or know how to enforce it.  Having estate planning documents creates an extra layer of legal protection.

3) The Oregon Family Fairness Act may not be recognized in other states.  Even if a same sex couple is registered in Oregon, they may run into problems if they travel out of state.  For example, if one partner becomes ill and needs to be hospitalized, another state may not recognize the other partner's right to visit the sick partner or to make medical decisions on their behalf.

4) Federal law does not grant same sex couples the same rights as opposite sex couples.  Although a same sex couple registered as domestic partners receives some of the same rights as an opposite sex couple in Oregon, for federal purposes they do not have the same rights as an opposite sex married couple.  Estate planning can help to bridge some of these gaps in legal rights.

Consider what happened with California same sex couple, Tom Bridegroom and Shane Bitney Crone: The pair were together for six years.  They started a business together, owned a mortgage together, and adopted a dog together.  They were in a committed relationship.  Tom's family, however, did not accept him after he came out as gay to them.  

Tom died in an accident on May 7, 2011.  The couple did not have an estate plan.  Tom's family did not allow to Shane attend the funeral, nor was he mentioned in Tom's obituary.  Additionally, when Shane tried to request information regarding Tom's death, he was told he would need to speak with Tom's parents.  As Shane put it, "To  the government, Tom and I were mere roommates."

  You can watch the video Shane put together telling his story here:

You can also read more about it on the Huffington Post.

"Losing a loved one is devastating enough, but to be rendered legally insignificant only makes the pain worse."

Friday, February 1, 2013

New Year's Resolution: Get Your Estate Plan in Order

I hope everyone's 2013 is off to a good start.  How is everyone doing on your resolutions? If you haven't made a resolution, how about creating or updating your estate plan? Estate planning might not be very exciting or fun to think about, but it's something that's very important.

An estate plan is something every adult should have, regardless of age, socioeconomic status, or marital status.  When I meet with my clients, I recommend that they all have the following documents:
  • Advance Directive for Health Care
  • Durable Power of Attorney 
  • Will 
  • Disposition of Remains Designation
I also make sure we go over any financial accounts they may have: life insurance, retirement, bank accounts, etc. and check that (a) they've named beneficiaries and (b) the beneficiaries are current. 
(We don't want to have an ex-spouse or someone who has died listed as a beneficiary.)

A January 11, 2013 New York Times Article illustrates the importance of estate planning: A Shocking Death, a Financial Lesson and Help for Others.  Chanel Reynolds' husband was killed in a bicycle accident.  At the time of his death, the couple did not have completed wills and Ms. Reynolds was unsure about the state of their finances. Not having a will wound up costing Ms. Reynold's thousands of dollars in legal fees that would have otherwise been unnecessary.  Not having an estate plan and an idea of her finances made the death of her husband even more difficult and stressful.

Spurred by her husband's death, Ms. Reynolds created a website, Get Your Shit Together!  On the website, she provides checklists, sample wills, advance directive, and power of attorney forms.    

As Ms. Reynolds says, "Should the ground fall out from under your feet - plan for a softer landing."

Please don't hesitate to contact me with any questions: kgapinski@aabyfamilylaw.com or 503.646.2501.