Exercising and Protecting POC and LGBTQ+ Rights Through Estate Planning in California
Wills, Trusts, Health Care Directives, Powers of Attorney, and Guardian Nominations
Well, here we are again. Fending off attacks on equal rights.
So what can we do about it?
One thing we all can and should do — and something that is especially important for anyone whose rights are not consistently respected by governments, courts, or institutions — is estate planning.
Whether it’s our own rights, or the rights of people we love, being questioned and politicized, estate planning is one of the most concrete ways to assert control and protect each other.
It may not feel urgent compared to everything else happening right now. But here’s why it is.
This isn’t meant to be an exhaustive list of everything we should be doing. My practice has focused on wills, trusts, and probate since I became a lawyer in 2011, and I see — every single day — the difference these documents make when things go wrong.
What Estate Planning Actually Is
When I say estate planning, I mean:
Wills
Trusts
Health care directives
HIPAA releases
Powers of attorney
Guardian nominations
Estate planning is how we make critical choices in a legally enforceable way.
It’s how we decide:
Who inherits our assets
Who takes care of our kids, pets, and dependents
Who can visit us in the hospital
Who can make medical decisions for us if we can’t
Who can manage our finances and pay our bills
Whether all of this stays private — or subject to public court supervision
Estate planning is how we legally recognize the people who are important to us, how we give them legal authority to act for us, to benefit, to be involved.
It’s also how we make things easier — or much harder — for the people who are trying to show up for us in the worst moments of their lives.
Relationship Recognition Is Not Enough
Some rights come by default with legal recognition of relationships such as marriage, or a parent/child relationship; which is one key part of why legal recognition of a relationship is important.
But even when a relationship is fully recognized under the law, the baked-in rights that come with that relationship recognition are not sufficient.
Estate planning covers more rights, and in more detail, and allows each of us to make our own choices instead of defaulting to how state and federal laws and courts prioritize our relationships.
A Quick Jurisdiction Note
I’m licensed in the state of California, and I’m talking about California law and procedures here.
So how do we exercise our rights? What documents cover each of these things? This is a good time for a quick reminder that while many of these concepts are the same or similar throughout the country, there are differences in details, terms, and laws in each state. (Things vary even more in other countries.)
Guardian Nominations
Who Takes Care of Your Kids If You Can’t?
A guardian nomination is how you appoint the person that you choose to take care of your kids if they are under 18 years old and you can't be there for any reason (e.g. incapacity, if you're out of the country, if you're detained, or deceased).
A guardian is legally similar to a parent; the guardian is responsible for providing a child's food, housing, education; all of the personal care decisions that a parent makes day to day.
If you don’t have a guardian nomination in writing and a guardian becomes necessary, a judge will decide who should take care of your child.
If there’s any chance a parent’s rights won’t be respected — including situations where:
Parents aren’t married
A parent isn’t biologically related
A parent isn’t on the birth certificate
A relationship isn’t consistently recognized
…it’s even more important to have a written guardian nomination that clearly names that parent as the first choice.
Trusts (Revocable Living Trusts)
Control, Privacy, and Fewer Opportunities for Interference
This is the best way to direct who inherits your assets, choose who is in charge (your trustee), and keep it all private and efficient.
Trusts are similar to wills, but better.
A trust lets you:
Decide who inherits your assets
Choose who’s in charge of carrying out your wishes and what your assets can be used for (usually education, health care, and living expenses - what are your priorities?)
Decide when beneficiaries gain control i.e., at what age your children (or other young beneficiaries) can decide for themselves how to spend the money (maybe not 18 and maybe not on a Ferrari before college graduation)
Decide who inherits the assets next (maybe your spouse first but your kids next? Kids and then grandkids? Your mother if she outlives you and then whatever she doesn’t use to your kids? Whatever YOU choose.)
And it all happens privately. Only a few people are entitled to a copy of your trust after you die. Whereas a will must go through public probate court, get supervised by a judge, and therefore generally take a whole lot longer and cost a whole lot more money. A will also doesn’t offer many options for guiding kids’ use of the assets after 18.
To summarize:
A will goes through public probate court.
A trust generally does not.
Last but definitely not least, trusts provide benefits to YOU, while you’re living.
Incapacitated and need someone to manage your assets for your benefit during your illness? A trust is the easiest and most comprehensive way to plan ahead for that. Out of the country? Detained? Otherwise unavailable? A trust is really helpful.
And contrary to popular belief, a trust does not limit you and what you can do with your assets. Once you set it up and transfer your assets to your trust, it’s ready and waiting in case it’s needed, quietly sitting on a shelf or in your Dropbox, not causing any trouble, ready to spring into action.
Health Care Directives and HIPAA Releases
Who Speaks for You When You Can’t
These documents are how you appoint the person that you want to make medical decisions for you if you cannot do it yourself, give them guidance about what you want in an emergency, and authorize your doctor / medical providers to speak to them.
Who do you trust to take care of you personally and medically in an emergency? What do you want them to know about your treatment preferences? What is most important to you for quality of life? Who can or can’t visit you? Is it important to you to live at home? It’s so much more than “when to pull the plug.”
Financial Powers of Attorney
Who Can Handle Your Finances
A power of attorney lets someone you choose handle financial matters if you are unable to.
It allows the person you appoint to deal with your utilities, insurance, vehicles, and more if you are sick or out of the country and can’t manage them yourself. If you don’t have a trust, a power of attorney may need to cover all of your financial assets and responsibilities.
These Documents Should Change as Life Changes
The details for each of these documents can and should vary depending on our circumstances, needs and goals. What assets do we have? Where do we live? Who are the important people in our lives? What are our priorities and goals right now? These documents can and should change over time as our lives change. You don’t have to come up with the perfect plan; life changes anyway.
A Critical Note for Trans Clients and Name or Gender Changes
I want to talk about a few critical details related to these documents when preparing documents for someone who is trans or documents benefiting someone who is trans, or anytime there's been a legal name change or gender change impacting anyone named in the documents.
If you already had these documents set up and a name change or gender change happened afterwards, it's important to update everything so the documents are clear and avoid ambiguity, confusion, and room to cause trouble.
The names in a document need to match the ID of the person named, both the person signing the documents and the person benefitting from the documents. The person signing the documents will need to sign most of them in front of a notary, and the notary will have to check your ID to ensure it matches the name in the documents.
If there is any potential for issues, it’s important to discuss it with your attorney early enough in the process to find a solution.
We need to avoid ambiguity. Ultimately, if things are ambiguous or confusing, or leave room to argue about who is actually the person named in the documents, that's when we end up in court, and nobody wants that even in normal circumstances, but especially right now.
If your chosen name (or that of one of the people you’re naming in your documents) is different from your legal name on your ID or other legal documents, be sure to let your lawyer know early on so that we both avoid causing harm, and make sure that your legal documents are enforceable and clear.
Final note
We all have the legal right to decide who should inherit our assets, who should manage our assets and healthcare if we cannot, and who is best to take care of our kids and our animal companions. Clear, thorough legal documents are the best way to exercise these rights for all of us, and it's especially critical right now for anyone who can’t rely on fair treatment under the law.
We would be honored to help - please reach out.
You can schedule a consult with me (Marisa) here to get started.