Domestic Partnerships

 Kathleen Womack, Attorney at Law, has extensive experience and sensitivity in handling the special legal needs of the Gay, Lesbian, Bisexual, and Transgender (GLBT) Community in Georgia.

Legal Documents to Protect Your Family of Choice

Until same sex couples are granted the same marriage rights as opposite sex couples, either through traditional marriage or civil unions, they must find other ways to protect their relationships and their families of choice. If they fail to do so, the law may grant important rights and privileges to biological family members, to the exclusion of their life partners.

Similarly, the lack of marriage rights for lesbian and gay couples may cause breakups to lead to even more expense and conflict than necessary, unless the couple is properly prepared with legal documents.

There are a number of the documents lesbian and gay couples can use to protect their important relationships. The basic Domestic Partner Package consists of a Last Will and Testament, Georgia Advance Directive for Health Care, and Durable Financial Power of Attorney, described below. By signing these Domestic Partner Package documents, the couple is able to protect their legal, medical, and financial affairs from control by their biological families.

Last Will and Testament
Georgia Advance Directive for Health Care
Durable Financial Power of Attorney
Durable Health Care Power of Attorney
Living Will
Domestic Partnership Agreement
Joint Tenancy with Rights of Survivorship Deed
Name Change Petitions
Power of Attorney for Minor Children
Second Parent Adoption
Transgender Issues
Gay Marriage, Civil Unions & Domestic Partnerships

Last Will and Testament

A will is a document that details the distribution of your property after your death. In the document, you also name an executor to distribute your property, including any pets that you own, in accordance with your wishes, as well as to name a guardian for any minor children. A will is one way to state to everyone very clearly who is most important in your life.

It is especially critical for gay, lesbian, bisexual and transgender individuals to have a valid will that expresses their wishes. If a person dies without a valid will, Georgia intestacy laws automatically direct who will inherit your property, beginning with your biological family. Georgia law does not recognize domestic partner relationships or gay marriages from other states or countries. This means that if you do not have a legally valid will, your partner could end up with nothing or, could lose property he or she paid for due to an inability to demonstrate ownership.

Georgia Advance Directive for Health Care

Effective July 1, 2007, Georgia replaced the old Living Will and Durable Health Care Power of Attorney forms, with a new, more comprehensive document, the Georgia Advance Directive for Health Care. This document allows you to state your treatment preferences if you are in a permanent state of unconsciousness, or are dying from an incurable disease. It also allows you to designate another person as your agent to make medical decisions on your behalf, and to visit you in the hospital or other health care facility. If a situation arises in which you are incapacitated and cannot make medical decisions for yourself, the Advance Directive instructs doctors, nurses and others involved with your care that the person you appointed as your agent is the person who you want making care decisions on your behalf, up to and including making the decision to remove you from life support, and handling your funeral instructions.

It is especially critical for gay, lesbian, bisexual and transgender people to know that if you do not have a Georgia Advance Directive for Health Care naming your partner or a friend as your agent, the hospitals and courts will look to your closest biological family member to make health care decisions for you, and your partner or friend will have no legal right to make such decisions, or in some cases, to even visit you in the hospital. Without this document, your partner or friend will also not be able to claim your body after death or direct the disposition of your remains.

Durable Power of Attorney for Finances

A durable financial power of attorney allows you to appoint another person as your agent, and grant him or her access to your money and other assets, as well as the authority to make financial decisions on your behalf if you become incapacitated. It is critical for gay, lesbian, bisexual and transgender people to know that if you do not create a durable power of attorney for finances naming your partner or a friend as agent, no one will be able to manage your finances unless a guardianship proceeding is filed in court, and your closest biological family members will have priority of appointment.

Durable Health Care Power of Attorney

Prior to July 1, 2007, a durable health care power of attorney allowed you to designate another person as your agent to make medical decisions on your behalf. If you executed a Durable Health Care Power of Attorney prior to July 1, 2007, it would still be valid until you execute the new Georgia Advance Directive for Health Care Form.

Living Will

Prior to July 1, 2007, a living will was a document that instructed your doctor about your preferences for life-sustaining procedures in the event that you had a terminal condition, were unconscious with no reasonable expectation of regaining consciousness, or were in a persistent vegetative state. If you executed a Living Will prior to July 1, 2007, it would still be valid until you execute the new Georgia Advance Directive for Health Care Form.

Domestic Partnership Agreement

A Domestic Partnership Agreement, also commonly called a Joint Property Agreement or a Living Together Agreement, is a document that explains the contractual legal rights and responsibilities of each partner when a couple decides to form a long-term committed relationship and own property together. At this time same sex partners cannot legally marry or enter into civil unions in Georgia, and even having a Commitment Ceremony does not grant any legal rights to a same sex couple. Therefore, a domestic partnership agreement is an important legal document for gay, lesbian, bisexual and transgender couples, since rights between same sex couples are governed by principles of contract law, not family law.

In the event of potential disputes or misunderstandings, a domestic partnership agreement can help clarify ownership of property, provide guidance for dividing property in the event of a separation, and specify a dispute resolution mechanism such as mediation or arbitration prior to the commencement of litigation to resolve disputes.

Joint Tenancy with Rights of Survivorship Deed

Many same sex couples own homes together in joint names, with the belief that if one of them dies, their one half share will automatically pass to their surviving partner. This may not always be true, depending on how the Warranty Deed was drafted that they received at closing. If the home was not conveyed to both partners as joint tenants with rights of survivorship and the partners do not have wills leaving the home to each other, they could find that upon the death of one of the partners, the deceased partner’s one half share of the home would be owned by the deceased partner’s family, instead of the surviving partner. Other than with a validly drawn will, this problem can be corrected by a properly drawn Quit Claim Deed creating a joint tenancy with rights of survivorship.

Name Change Petitions

Many couples wish to share the same last name, particularly when minor children are involved. This process involves filing a verified name change petition in the Superior Court of the county of your residence, followed by a court appearance after a thirty day waiting period.

Power of Attorney for Minor Children

If a same sex couple has children, unless they have accomplished a second parent adoption through the Superior Court, the non-biological parent will have no legal standing to pick up the child from school, or make any medical decisions for the child. A Power of Attorney for Minor Children allows the biological or adoptive parent to give authority to the non-biological or non-adoptive parent to be involved in educational and medical decisions for the child.

Second Parent Adoption

In a limited number of circumstances, a person may be able to adopt his/her partner's biological or adopted child in a Second Parent Adoption proceeding in the Superior Court of the county where the child lives with the couple. This adoption provides all the same rights and responsibilities to the adopting parent that the legal parent has, including the rights to make decisions for the child, to provide the child with health insurance, inheritance benefits, and other government benefits, and in the event of separation of the couple, the rights to custody and visitation, and the obligation to pay child support. Georgia law requires that the person seeking to adopt the child be at least 25 years of age.

Transgender Issues

It is important that Transgender individuals be able to deal with an attorney that is sensitive to their particular needs. I have handled multiple name change petitions in Superior Courts in Georgia, for both male to female, and female to male transgender individuals. 

Gay Marriage, Civil Unions, and Domestic Partnerships

Georgia does not recognize same-sex unions from any other state or country, however, some private companies, and a few county and city governments in Georgia, provide for Domestic Partner health insurance benefits. Georgia couples obtaining a marriage, Civil Union or Domestic Partnership from another state will not obtain any rights in Georgia as a result of the ceremony. To obtain any protections for their relationships, couples must enter into the basic written documents described in the Domestic Partner Package referenced above. More on Gay Marriage.
 
For representation on your domestic partner issues, please contact Kathleen Womack, at 404-303-0130.