The following is an excerpt from Ask the Experts on Talk 860 WWDB AM with weekly guest, LGBTQ legal expert Angela Giampolo.
- A discussion of the federal legal rollbacks in LGBTQ rights during the Trump administration and the current legal hurdles at the state level
- The three most important documents in your estate planning strategy with regard to important healthcare issues
- What HIPPA laws are and how they impact your rights
- The importance of a living will and a hospital visitation authorization form
- The uses of the two most important trusts in estate planning for LGBTQ couples, both married and unmarried
Be sure to tune in every Tuesday at 10:00 AM when Angela Giampolo is the guest on Ask The Experts on 860 WWDB AM and online at WWDBAM.com
In an episode of Ask The Experts, Steve O. interviews one of Philadelphia’s top and finest legal experts, Angela Giampolo, Esquire. You’ll learn everything you need to know in legal healthcare directives, HIPPA and estate planning, Revocable Living Trusts for probate and tax avoidance, the current state of marriage equality and much more! Read on for a riveting and eye-opening discussion from your legal expert, Angela Giampolo.
Giampolo Law Group: The Heart of LGBTQ Law
My law firm is called Giampolo Law Group in the heart of the Philadelphia Gayborhood on 12th and Locust Street. I’ve been there going on eight years in the Gayborhood, but I’ve been in the city for about 15 years. The idea was — there are law firms out there for everything and for everyone. And I saw a hole in the marketplace for specifically a lawyer and a law firm geared solely towards the LGBTQ community and all of our legal needs. And obviously, 15 years ago that was much more difficult than it is now. And even with the last administration, there was a lot of rollbacks, so it’s never easy. And the laws are constantly changing, so we wanted to have an advocate that is solely focused on those laws, how they’re changing, and really informing the community.
These laws can easily be rolled back. During the Trump administration, we saw our inability to get married. Some laws are on the federal level; some laws are at the state level. So depending on who’s in the administration, they can tweak our rights at the federal level.
Regardless of the fact that at the state level you are allowed to do this or that, you may not be federally recognized. So during the Trump administration, two things happened. We saw our rights at the federal level be rolled back, and then we saw power given to the states to enact what we deem to be anti-LGBTQ laws. But they did so in the name of religion, RFRA, and the Religious Freedom Restoration Act.
So there are constant rollbacks: move three steps forward, two steps back on… Just two weekends ago, Texas banned transgender students from participating in sports. So it’s constantly evolving both from moving forward with progress and rolling backs as well.
A Deeper Understanding of the Healthcare Trifecta Documents
We’re going to focus on estate planning and a proper estate plan usually includes eight to nine documents. And I have what I call the healthcare trifecta documents, which have three documents that come in your proper estate plan.
They are as follows:
- The Healthcare Power of Attorney
- The Living Will
- The Hospital Visitation Authorization form
So, again, we’re talking about laws rolling back and progress moving forward. With marriage equality we have innately, though being married, the right to visit one another in a hospital, right? So people ask me all the time, “I’m married, I don’t need a Hospital Visitation Authorization form, I’m allowed in the room.” However, we’re only considered married in 29 countries out of 160 or 191 at most.
So if you slip and fall on the Great Wall of China, you’re not considered married. If you get nipped by a lion on safari in Tanzania, it’s actually illegal to be gay so you don’t want to be screaming, “Oh, that’s my wife.” The Hospital Visitation Authorization form is a one-page document that I shrink down, laminate, and the couple holds on to one another’s. Or if the person is single within the LGBTQ community, we tend to make our own families. On that document, I list people that are not HIPAA-related, but that you would want to visit you in a hospital. So the record can be vastly different. One client has 36 people on their HVA and some people have zero. So, that’s one of the healthcare trifecta documents.
The other one is the healthcare power of attorney. This document is very simple. It allows someone to make healthcare decisions for you. So the HVA or the Hospital Visitation Authorization form gets them in the room, but it gives them no power. Meanwhile, the healthcare power of attorney is the document that appoints the person to be able to speak to the doctor on your behalf.
Now a lot of lawyers make the HIPAA waiver yet another document. Mine is included in the healthcare power of attorney. So if anyone ever says, “Great, you have Angela’s healthcare power of attorney, but did she sign a HIPAA waiver, a HIPAA release to you, allowing me to talk to you, allowing me to inform you about what’s wrong with Angela?” And the answer is, “yes, it’s inside my healthcare power of attorney.”
We already have nine documents per person. To make the HIPAA waiver yet another document, when you could leave it at home, to have four healthcare documents would just be dangerous, especially since not a lot of people don’t know what HIPAA is. It’s even considered as a hospital’s worst nightmare.
It is the law that makes it so that you must sign this document for a physician or for any healthcare provider to be able to share medical information about you to someone else. So that is HIPAA. It is the law that governs information being shared about your healthcare situation. By virtue of being married, nobody waives their HIPAA rights until you do. So you can have a healthcare power of attorney, but you must also have the HIPAA waiver. Mine are included in the same document.
And then the third one is the living will. And it’s exactly like it sounds: you’re living, technically alive, but we’re about to be reading your will. In other words, you are in an end-stage medical condition. There is no significant hope of recovery. You are in some way terminal or you are in an irreversible coma or vegetative state. Should you be in what they deem to be called an end-stage medical condition, then the living will kick in because there are choices on what you do or do not want to have.
The doctor has to follow these rules, but the document has to get to the doctor, right? So if you’re in a car accident on the side of 95 and the ambulance just takes you to the hospital in a rush, who is bringing that document? Who’s letting the doctor know Angela has a DNR? What if Angela doesn’t want the doctor to crack 16 of her ribs trying to get her back? So I always tell people it’s important to get these documents done but to also have them on file with your physician. Make sure to have people important to you that are your ICE or ‘In Case of Emergency’ phone call person, educate them about these documents, have them know where they are, make sure they’re accessible to them. Because if you’re in that car accident, it’s not helpful that you know where these documents are or that you can get to them because you actually can’t get to them in that time and space.
Why The Hospital Visitation Authorization Form Is an Important Document for the LGBTQ Estate Plan
The Hospital Visitation Authorization Form is one of the most important documents and it has saved so many of my clients over the years from being able to see their partner before they pass. That last five minutes, the last two minutes, just being allowed in the room makes all the difference.
Today, we’re allowed to get married but not all of my clients are choosing to get married. In addition, there are a lot of people that the national marrying age is getting older and older for gay and street people, right? So it’s 31 for men and 29 for women. That’s the oldest that it’s been ever historically recorded. So people are getting married later and later and later even though they may have a long-term committed partner. Again, by virtue of marriage, you’re allowed to visit your spouse in a hospital room. You may or may not be allowed to make decisions, but they’re going to let you in.
The Hospital Visitation Authorization form is a document that allows you in, despite your legal connection to that person or despite being married. For example, four people walked me down the aisle: my brother, my father, and my two best friends. Not all of them wouldn’t be allowed in. My two best friends would not be allowed to visit me in a hospital, my brother and my father would. Without an HVA, the other two would be denied unless someone put them on the visiting list. But if they drove all night and arrived at three in the morning, there’s nobody there to let them in. So, the Hospital Visitation Authorization form can be the most important document, even though it technically brings with it no power to make decisions.
Should You or Should You Not Get Married?
A lot of people don’t realize that there are 1,138 state and federal rights tied to the institution of marriage. That’s a lot compared to Canada. I’m Canadian, born in the US, but grew up in Quebec, and my mom is French Canadian, born and raised. And Canada has four, compared to the 1,138 state and federal rights in the USA. Most countries don’t tie that many state and federal rights to any institution. This country has shepherded us legally and financially towards having to get married. When people ask me if they should or should not get married, it really differs according to their situation and the context of where they are in life.
Those factors really dictate whether or not I advise them on getting married. But if a couple comes to me and they’ve been together 47 years and they’re legally unmarried because they never thought it would happen and politically they don’t want to get involved with the government that hasn’t recognized them for 40 years and has delegitimized their relationship and all of the things, and I advise them to get married.
If you don’t want to die unmarried in this country, one of the biggest rights is taxation. So when you’re legally married to someone, that person inherits your entire estate at 0% tax and 0% inheritance tax. When you are unmarried, there’s a 15% tax there. We used to call it ‘the gay tax.’ So to die unmarried in this country when you’ve been together 47 years, just go to the justice of the peace and tie the knot. No one needs to know but do it so that in the eyes of the law you are not considered legal strangers and you don’t pay that 15% gay tax to a government that hasn’t recognized you and that has delegitimized you. So the only entity that is benefiting, in fact, is the very entity that is the entire reason why you don’t want to get married. So if you don’t get married, they get 15% of your estate.
My advice? Screw them. Get married, do it!
But if they’re 29 and 31, I may have a different take on it. You can get what’s called a ‘cohabitation agreement’ or a ‘pre prenup.’ This ties up all the loose ends that marriage would tie up, but inside of a cohabitation agreement or inside of what I call a pre prenup.
The Two Main Trusts in Estate Planning
For the record, there are tons of different trusts out there, not just two. I always say trusts are like cars. You wouldn’t help your friend move in a Mini Cooper and you wouldn’t drive cross country in a Denali, right? But the two main types of trusts out there are revocable or irrevocable. So there isn’t a trust out there that doesn’t fall in one of those two categories. Instead of two types of trusts, there are categories of trusts.
These trusts are either going to be revocable or irrevocable.
The revocable living trust is the one that really helps out and keeps you out of the probate court. There are multiple reasons why revocable living trusts are important, especially for the LGBTQ community. Prior to marriage equality, a revocable living trust was how I recreated a legal marriage. So when we weren’t able to tie that connection and bring those 1,138 state and federal rights, I would create a revocable living trust and have the two people be joint co-trustees of their revocable living trust. It was more powerful than just having durable powers of attorney. Imagine it as if your relationship was a castle and the revocable living trust would create a moat around that same castle. The government would have to find a way to cross over that moat. Therefore, the revocable living trust was an added level of protection.
Now that we have marriage equality and my LGBTQ couples are married, I advise revocable living trusts, just like I do for everyone. The main three reasons are health-related reasons. For example, I just dealt with a lesbian couple a couple of months ago. One has early-onset Alzheimer’s. So she’s with it now, she’s with it the majority of the time, but her partner, her wife, can tell when she’s not there. It’s very brief, but it’s happening. It’s early-onset.
By creating a revocable living trust and appointing her wife as successor trustee, it doesn’t really matter if she’s with it or not. At some point she can resign as her own trustee and her wife is automatically her successor trustee.
When it comes to real estate, the minute that you have a home, in my opinion, valued at over 250,000, a revocable living trust is a no-brainer because our goal is to avoid probate. We want to avoid probate in this country. Probate is a legal verb. In other words, your estate has to go through the probate process when you pass, unless you do estate planning to avoid the probate process. And that’s the key.
So in the last 50 years or so, we created all these mechanisms to avoid probate, like beneficiary designation forms. And with our financial products, we can avoid probate easily through beneficiary designation forms. Real estate is our largest asset that goes through probate unless we retitle it in the name of a revocable living trust.
The other thing is, the laws were written 300 years ago. So our estates have to go through probate in every state in which we own real estate. In Philadelphia, from my office, I can see New Jersey. So if you own real estate in Brigantine and Margate and Cape May in the little gay Mecca of Asbury Park, where I own, you will have to go through probate in Pennsylvania and in New Jersey, unless you retitle that Asbury Park home in the name of your Pennsylvania revocable living trust. Your New Jersey revocable living trust and take that condo in Old City and retitle it in the name of your New Jersey revocable living trust.
The states here in the Northeast are so close. You throw a rock, you hit Maryland; you throw a rock, you hit New Jersey. There are so many of my clients that don’t realize that they’re an estate planning nightmare because they own property in multiple states, but it only takes them 30 minutes to get there and they don’t view it as multi-state. And probate can be very expensive.
The process can also take a very long time, especially because of COVID. Just yesterday, I had a client call. Now all oaths are still virtual and I went online to book the virtual oath. The first oath I could get my person appointed is on December 17th, which is cutting too close when you consider that we have a three-month deadline to meet.
It’s really important to get all your affairs in order so don’t waste time on it.
Want something to look forward to? Wait for Our Boss Talk!
The podcast is coming out soon. It’s called Out Boss Talk and it’s geared towards LGBTQ entrepreneurs. And, as I said, we just are wrapping up season one and it should be out soon.
What are you waiting for? Where There’s a Will, There’s a Way!
Giampolo Law Group is so passionate about estate planning, they went so far as to trademark Where There’s a Will, There’s a Way. A properly structured trust will avoid putting your loved ones through the expensive, lengthy, and emotionally draining court probate process. Most important, you can prevent some or all of your assets from being subject to estate law upon your death, allowing more of your estate to be enjoyed by your loved ones.
The marriage equality ruling drastically changed the legal landscape for LGBTQ couples and Giampolo Law Group is experienced with what those changes mean for estate planning. Giampolo Law Group can help you establish or reorganize your estate plan to address your concerns while accounting for the complexities in state and federal laws.
The attorneys at Giampolo Law Group are experienced in assisting clients with estate planning, specifically in preparing or revising wills, trusts, and other ancillary documents such as powers of attorney and hospital visitation forms.
Contact Giampolo Law Group today for a complimentary consultation. (215)-398-6579. Remember, Where There’s a Will, There’s a Way.