ESTATE PLANNING FOR THE LGBT COMMUNITY

Are you or someone you love a member of the Lesbian, Gay, Bisexual and Transgender (LGBT) Community?  Does your LGBT loved one or you, as a member of the LGBT Community, have an estate plan?  One of the biggest mistakes a member of the LGBT Community can make is failing to properly set up an estate plan – the results of which can be devastating.

Having no estate plan, or relying upon just holding property in joint tenancy as your estate plan, is the equivalent to giving up control of one's estate, as well as giving up management of one's health, finances and well-being in times of incapacity.

The need for an estate plan is most critical in cases of an accident or illness that renders the LGBT person incapable of making medical decisions or managing his or her financial affairs. Without a proper estate plan, the partner or significant other of an LGBT person could be legally precluded from having any role in the decision-making of his or her partner's care, management of his or her financial affairs, or even having physical access to the incapacitated partner.

Registered Domestic Partnership (RDP)

Many states, including California, offer domestic partnerships as a method of legal recognition for same-sex relationships. The rights and responsibilities of being a RDP are numerous, including community property rights between the partners.  Before registering, be sure to speak with a qualified estate planning attorney, who is familiar with the unique legal and personal needs of the LGBT Community. That attorney can counsel you on the implications of registration and the advisability of registering based on your unique situation.
The Problems Estate Planning Solves for the LGBT Community

A LGBT individual or couple can avoid numerous problems through proper estate planning, which includes:

• A Basic Will.  Everyone, whether gay or straight, should have a basic will.  But it is even more important for LGBT Community members to have a basic will because without one, the laws of intestate succession will dictate who will receive your assets when you die.  And that person may not be who you want.  A basic will ensures the LGBT person's assets are distributed to whom he or she wants, when and how he or she desires.

• A Revocable Living Trust.  A Revocable Living Trust can establish the LGBT person’s partner as the trustee.  The trustee is the manager of the person's affairs both when the LGBT person becomes incapacitated and when they pass away.  A Revocable Living Trust also gives the LGBT person more control over who will receive their property and allows them to provide gifts to family, friends and even charitable organizations. Not everyone needs a Revocable Living Trust, but if you have substantial assets, and own real property, a Revocable Living Trust may be right for you.  It is very important to talk to an experienced estate planning attorney who is knowledgeable about the rights and needs of the LGBT Community when considering a Revocable Living Trust.

• An Advance Health Care Directive.  An Advance Health Care Directive can avoid the potential problems of the LGBT person not maintaining control over his or her health care decisions and his or her partner not having access to the LGBT person during a period of incapacitation.  By preparing an Advance Health Care Directive, an LGBT person can make sure their partner (or the person they want) is making health care decisions for them, and they can make sure the health care decisions being made are the right ones for them.

• A Durable Power of Attorney.  A Durable Power of Attorney allows an LGBT person to designate who they want handling their financial affairs and property in the event that person is incapacitated.  By preparing a Durable Power of Attorney, an LGBT person will make sure their partner, or someone else they trust and rely upon, is handling the important job of managing their money.  Without a Durable Power of Attorney, someone in your family you may not trust could be declared your conservator and take control of your money.  Don’t let this happen!

Proper estate planning by members of the LGBT Community will ensure their assets will go to whom they want, their estate will be managed by who they want, and in the event they are incapacitated, their medical decision and financial matters will be handled by the person they want.  It is very important that every member of the LGBT Community, whether Registered Domestic Partners or not, creates a comprehensive estate plan so as to ensure the protection of their assets and their rights.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

Please join me on September 12th at 10:00am at http://toginet.com/shows/thecomingoutlounge for The Coming Out Lounge with more information on estate planning for the LGBT Community.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

IDENTITY THEFT - DON'T LET IT HAPPEN TO YOU

Have you been the victim of identity theft?  Do you know what identity theft really is and how it can affect you?  It happens to people just like you every day.  Don't let it happen to you!

Identity theft is the unauthorized use of someone’s personal data (like social security numbers, passports or driver’s license) for unlawful purposes, such as to obtain credit cards or credit loans.

Identity theft strikes 8.3 million Americans each year and costs businesses and consumers billions of dollars.

Identity theft can occur from your trash, stolen purses or wallets, or the “skimming” or taking of encoded information directly from your credit cards or your credit card receipts.

And watch out for "phishing"!  Phishing is the use of misleading e-mails and fraudulent websites to trick users into revealing personal financial data online.  Never give your personal financial information out on the web unless you know and trust the website.  This is the fastest growing area of identity theft.

If you fall victim to identity theft:

• Contact the credit 3 big credit agencies and put a fraud alert on your credit report
• File a police report immediately
• File a complaint with the federal trade commission and fill out an ID theft affidavit and send it by certified mail to all businesses where any new account was opened

Report fraud right away - don't wait!  And request a free copy of your credit report each year.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

WHAT TO DO RIGHT AFTER A CAR ACCIDENT

Have you been injured in a car accident as a driver or passenger through no fault of your own? There are several important things you need to do right after a car accident to protect your rights.

• Take pictures at the scene! It is very important that you to take pictures at the scene of the accident.  These pictures can be very helpful to prove your case.  

• Report ALL your injuries to first-responders and emergency personnel.  It is extremely important that all injuries suffered as a result of the accident are well-documented.  Report all symptoms, such as: headaches, dizziness, blurred vision, loss of consciousness, or neck, back or shoulder pain.

• Seek medical treatment right away.  Even if you feel your injuries are only minor right after your accident, see your doctor right away.  Many injuries that at first appear to be minor can later cause significant long-lasting pain.  

• Never give any written or recorded statements to an insurance adjuster or sign anything from an insurance company, especially a release.  Never give any “statements” of any kind to an insurance adjuster or anyone besides the investigating officer at the scene until you have consulted with an attorney.  

• It is important to notify YOUR insurance company immediately of the accident.  It is ok to tell them you have been in an accident, but keep it short until you have talked to an attorney.

• Keep good records of your injuries, treatment, medication and out-of-pocket expenses.  

• Obtain a copy of your police report.

Recovering from a car accident can be a very upsetting and confusing experience. After you've been in a car accident, talk to an experienced personal injury attorney.


I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

BICYCLE RIDING SAFETY

Do you enjoy riding your bicycle on the streets?  Does your child enjoy riding his or her bicycle, skateboard or scooter on the streets?  If so, there are traffic laws that must be followed just like if you’re driving a car.

Bicycle riders—adults and children alike—must abide by the traffic laws that apply to motorists. Bicyclists must stop at stop signs and red lights, ride on the proper side of the street and give the right-of-way to all pedestrians.  Also, some California communities have local ordinances that prohibit bike riding on sidewalks in certain areas, such as business districts. And bicycle riders under the age of 18 must wear bicycle helmets and must, if riding at night, have a bike equipped with a front light, red rear reflector, pedal reflectors and side reflectors or reflectorized tires. Wearing a radio headset is prohibited while riding a bike at all times. It is against the law to ride on someone’s bicycle handlebars or center frame bar, or over the bike’s rear tire.

There are also laws that apply to those who use skateboards, skates and scooters. Cities and counties have laws regulating the places where your child may skate and the equipment that must be worn by skaters within these designated areas. Helmets, elbow pads and knee pads must, by state law, be worn at skateboard parks.

It is against the law to hold onto a moving vehicle while on a bike, skates or a skateboard. If your child violates any of these laws, he or she may be stopped by a police officer, cited and sent to juvenile traffic court, so talk to your children about following these laws. In addition, children under age 18 must wear a bicycle helmet while riding a scooter (motorized or non-motorized). And minors must be at least 16 years old and have a valid driver’s license or instruction permit to legally operate a motorized scooter, and may not operate such scooters on sidewalks or on highways that have speed limits greater than 25 mph.

I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

YOUR DURABLE POWER OF ATTORNEY – WHAT YOU NEED TO KNOW

What is a Durable Power of Attorney?

A durable power of attorney allows you to manage your property and financial affairs in the event that you become disabled or incapacitated. Unless you have a properly drafted power of attorney, when you become incapacitated or disabled, it may be necessary to go to court and have a guardian or conservator appointed to make decisions for you.  This conservatorship process is usually lengthy and expensive as well as being emotionally draining.

There are two types of durable powers of attorney you should know about: one, a "present" durable power of attorney in which the power is effective immediately; and two, a "springing" or future durable power of attorney that only comes into effect upon your subsequent disability or incapacity as determined by your doctor.  If you become incapacitated and are unable to make decisions, the person you have listed to act on your behalf would have the authority to deal directly with third-party financial institutions such as banks.

A durable power of attorney generally has to be signed and notarized and says that it shall be “durable,” which means it will continue in effect after you become incapacitated. It terminates at your death or at any time you specify. You can also cancel it at any time while you are competent. A durable power of attorney’s flexibility is one of its main advantages. You can limit the authority of the agent in the document, giving him or her as many or as few powers over your property and financial affairs as you wish.    

Who can establish a Durable Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can establish a power of attorney.  Every person of legal age and competency should have one.

Who may act as your Attorney-in-Fact under your Durable Power of Attorney?

When you appoint another individual to make financial decisions on your behalf, that individual is called your "attorney-in-fact."  Most people chose their spouse, domestic partner or adult child as their attorney-in-fact, but a trusted family member, friend or professional colleague may also be a good choice.  The person you chose should be someone who is capable of handling your financial affairs and someone you trust.  Your attorney-in-fact may be anyone who is legally competent and over the age of majority.  You may also appoint more than one attorney-in-fact to serve either simultaneously or separately.  Appointing more than one attorney-in-fact to serve simultaneously can be problematic because if any one of them is unavailable, important financial action may be delayed.  Confusion and disagreement between co-attorneys-in-fact can also be another cause of problems.  Therefore, it is usually more sensible to appoint one individual as the primary attorney-in-fact and nominate additional individuals to serve as alternate attorney-in-fact  if your first choice is unwilling or unable to serve.

Creating a durable power of attorney assures that your wishes regarding your financial affairs are carried out exactly as you want them, allows you to decide who will make financial decisions for you, and can be effective immediately or upon your subsequent incapacity or disability.

For more information on preparing your Durable Power of Attorney, and  establishing your comprehensive estate plan, contact an experienced estate planning attorney.

I’m attorney Eric Rudolph at (760) 702-4046 and at EARattorney@gmail.com with Your Legal Buzz.

And please visit my website at www.RudolphLegal.com and my Facebook page at https://www.facebook.com/RudolphLegal.

ADVANCE HEALTH CARE DIRECTIVES - WHAT YOU NEED TO KNOW

An Advance Health Care Directive allows you to make health care decisions for yourself and let those wishes be known when and if you are incapacitated and unable to communicate your wishes.

A "Living Will" and "Power of Attorney for Health Care" are similar documents used in other states, but in California, the Advance Health Care Directive (“AHCD”) is the estate planning document that is used to let your wishes regarding medical decisions be known.

One of the most important aspects of an AHCD includes the power to designate an agent to both enforce the decisions you have already made in your AHCD and to make decisions regarding health care options for anything you did not already decide.  Once you designate an agent in your AHCD it gives this person the power and ability to decide, on your behalf, various health care related choices. Your agent can be a spouse, child, a family member, or a friend.  To avoid conflict-of-interest issues, the agent you select cannot be a medical care provider, operator of a community or neighborhood care facility, operator of a care facility for the elderly, or in most cases, any employee of any of these facilities.

The agent you appoint, will have the legal authority to instruct medical providers about your medical care if you are unconscious or unable to give these instructions yourself. Your agent is legally bound to carry out your wishes, as put forth in your AHCD.  If you at some point become incapacitated, your agent's authority overrides others' and this person will decide on your behalf various treatment options, as spelled out in your AHCD. You may limit your agent's authority when you complete your AHCD or give him or her complete authority to make all healthcare decisions for you.

You should also designate one or two alternate agents for your healthcare decisions in the event your primary choice is unable or unwilling to act when the time comes that they need to instruct others on your help care decisions or make these difficult decisions for you.

It is important when choosing an agent for healthcare decisions that you discuss your designation with them before you select them in your AHCD.  You should make sure the person you selected is trustworthy.  They also need to be capable of handling the difficult task of enforcing your healthcare decisions or making them when necessary.  They should be someone who is geographically close enough to be there to make decisions under short notice if necessary.  And it is also important to discuss with alternate agents that they too have been selected to act in the event your primary choice cannot or will not act.

When you create an AHCD, you decide what you want, including use of life support equipment, donation of body parts, authorization for an autopsy if warranted, and what is to be done with your remains. Your agent simply makes sure your wishes are carried out.  You may also deny these powers of your agent. Health care decisions may also include selection and dismissal of health care providers and institutions, diagnostic test or surgical procedure approval or disapproval, medication programs, and directions to provide, withhold, or withdraw artificial hydration and nutrition and all health care of other forms, including cardiopulmonary resuscitation.

Your AHCD becomes operative when the doctor, or doctors, of your choice designate that you are incapacitated and unable to convey to medical personnel your healthcare decisions for yourself or understand the ramifications of those decisions.  Or an AHCD can become operative right away, giving your agent the immediate power to make your health care decisions.

And remember, your AHCD can be revoked by you at any time. If you do not revoke the AHCD, it will remain effective indefinitely except in the event that a termination date that predates your death was specified in the document.

It’s your body, your decision.  By creating an AHCD you decide what happens to you and you decide who enforces those decisions.  Without an AHCD someone you may not want making your healthcare decisions could be making them for you - and they could be making healthcare decisions about what happens to you that you do not agree with.  Don’t let that happen.  Create an AHCD today!

For more information on preparing Advance Health Care Directives, and your entire comprehensive estate plan, contact an experienced estate planning attorney.

I’m attorney Eric Rudolph at (760) 702-4046 or EARattorney@gmail.com with Your Legal Buzz.

NOISY NEIGHBORS - WHAT TO DO

Is your neighbor blasting his stereo at 3 a.m.? Does your neighbor's dog start barking five minutes after she pulls out of her driveway? Noisy neighbors can wreck your sleep and ruin your day. What can you legally do to make it stop?

When it comes to noisy neighbors, retaliation is not the answer. Revenge will only make the situation worse, and probably provoke your neighbor. Resist the temptation to turn your stereo up and fight back. Your neighbor may have no idea how loud her stereo or barking dog may seem to you. So talk to your neighbor about the noise level problem. You should make a specific suggestion for solving the problem. Maybe you and your neighbor can agree no loud stereos past 10 p.m. on weeknights. Or perhaps your neighbor's pet can be kept indoors while she is away, so barking won't disturb others.

If the noise continues, get a copy of your local noise ordinance. Most noise ordinances limit the level of noise and restrict the time when noise can occur. Check with other neighbors to see if they're also disturbed by the noise. If so, they might be happy to join forces to put a stop to the noise.

Put your complaint in writing.  Write a letter to your neighbor, describing the noise problem, and include information about your previous conversation(s) asking the noise be quieted or stopped. Suggest in the letter that if the noise doesn't stop, you'll be forced to call the police or start a lawsuit. Enclose a copy of the noise ordinance with the letter and the signatures of other neighbors who are also affected by the noise. If nothing else works, you should call the police while the noise is occurring. The police may simply warn your neighbor, but later if called again, they will issue a ticket or summons if the noise continues.

If all else fails, you can take your neighbor to small claims court. You'll likely have to prove that the noise is excessive and you'll also need to show the steps you've taken to try to stop the disturbances - here's where copies of your letter to the neighbor can come in handy.

Regardless of the approach you take, the more polite you are, the more likely you'll come to a livable solution to the problem and get along with your neighbor in the future.

I’m attorney Eric Rudolph with your Legal Buzz.