Gabriel Cheong Law

During these summer months, I’ve been out in the community in assisted living communities, participating in numerous elder fairs, and speaking with many financial planners about their views on how the elderly prepare for - well, being elderly.  In the Asian community, I’ve found a very strong resistance (or maybe a carelessness) about not only proper estate planning, but financial planning as well.  The traditional Asian family operates on the cycle of the young taking care of the old.  This is how it’s always been and many in the community feel this is how it should always be.  But let me reflect upon how in these times of change and economic uncertainty, these traditional methods of growing old may not work for the new generation.

I want to talk first about the Asian community and their views - being mindful that this is a general view of how families operate and by no means is this true across the board.  When I speak with Asians about estate planning, the response I usually get is either (1) I have health/life insurance and/or (2) what do I care what happens after I die; the kids can fight over it themselves. I’m not sure at this point if it’s the culture or the ignorance that drives these points of view but I know one thing - these views are very damaging to their children and to the community as a whole.

As I’ve stated in previous posts, estate planning is not only about finances but also about making plans for incapacity.  These plans not only include the person making it, but also their children.  Many people don’t consider the effects their incapacity or their death might have on their family.  This is especially true if they have dependants such as elderly parents or minor children.  They assume that they will pass away long after their elderly parents and long after their children have grown up.  This is not always the case but yet they turn a blind eye to the possibility. 

This trend is also true for financial planning in the Asian community.  The traditional ways of the young taking care of the elderly breeds an endless cycle of poverty in some cases that continue to harm our children and community.  The need to understand how to invest the money earned instead of simply hoarding it is very important to having a comfortable retirement and easing the burden off the next generation.  Only when we have financial security, through retirement years, can we truly begin to enjoy the times during retirement.  Having children take care of their parents when they are ill or when they need constant care is one thing, but having to take care of them because they never had the sense to plan for the future is another.  In addition, many young people are finding it harder to make ends meet simply for themselves.  The economy is uncertain, stock markets are down, consumer confidence is down, and credit and spending is way up.  The pressure of these economic times are tough enough without having to worry about our parent’s financial security as well.

These views are not only confined to the Asian community, though the numbers are greater in the Asian community.  These traditional views on growing old, death and financial security are hurtful to anyone in any culture.  It might be uneasy for some people to see the advice above, but the truth is that we live in very different times than our parents or their parents did.  We now have so many more opportunities for retirement investment and the knowledge to be self-sufficient even in our retirement years.  This advice might be too late for the already elderly, but for the next generation, the cycle of depending on our children to provide for you has to end.  Your children will thank you for it.

Vanguard is one of the most respected financial institutions in the United States.  They are a brokerage firm that handles your everyday stocks and bonds and mutual funds but they also are involved in numerous aspects of finance such as asset management, retirement accounts, etc.

They have a very short article published today outlining the importance of a proper estate plan and what every person should have and should do.

[Article]

Massachusetts was the first state to legalize same-sex marriage in the country.  California followed suit this year.  However a caveat to the Massachusetts new marriage laws is that Massachusetts will still deny same-sex couples, coming from out of state to marry in Massachusetts if the marriage would not be recognized in their home state.  This is a 1913 law that former Governor Mitt Romney dug up right after the Supreme Judicial Court (the highest state court of Massachusetts) ordered town clerks to hand out marriage certificates to same-sex couples seeking marriage.

There was an initial boom in same-sex marriage in Massachusetts following the SJC ruling.  However, those numbers seem to have leveled off after all the couples who were always denied the right of marriage got married.  Many same-sex couples from out of state stayed away from getting married in Massachusetts because they were not permitted to do so under the 1913 law.  That is now changing.  The Senate this week passed a bill that would repeal the 1913 law and allow for out of state residents to get a Massachusetts marriage certificate even if their home state does not allow same-sex marriage.  The house still needs to approve it and Governor Patrick still needs to sign it into law.  Both the House and the Governor are expected to approve and sign the bill.

What does this mean for same-sex marriage in this country?  Does this mean that anyone from any of the other 48 states can come to Massachusetts or California (since California does not have the equivalent of our 1913 law) and get married then go back home and live in marital bliss?  Those are all excellent questions and no one knows the answers to them yet.

Surely the states that have constitutional bans on same-sex marriages (at least 41 of them) will not recognize the marriage certificates of its citizens that travel to Massachusetts or California to obtain marriage licenses.  This does not mean that a legal challenge would not succeed.  Federal law permits individual states to not recognize same-sex marriages from out of state (Defense of Marriage Act) despite our nation’s long held belief in comity.  All the other states that allow some form of same-sex unions are undecided as to how they will not treat this new development.

One thing is for sure - the fight in this country to legalize same-sex marriage throughout the union will continue.  In my opinion, it is only a matter of time before all states will either voluntarily recognize same-sex marriage or will be forced to by their own courts or the Supreme Court of the United States.  It is no longer a question of “if” but “when”.  The next states to answer the question of same-sex marriage are expected to be Connecticut and Iowa.

This is another interesting read for today:

[The state’s highest court ruled today that a court can order child support payments from an unmarried father even after his death.]

There’s a really interesting article this week at Slate.  [An Affair to Remember:  She was 82.  He was 95. They had dementia.  They fell in love.  And then they started having sex.]

The article recounts the story of Bob and Dorothy who met each other at an assisted living community.  Just as the title says, they fell in love and started to have sexual relations.  Bob’s son, who was appointed Bob’s guardian (either through a court guardianship procedure or health care proxy), decided to put a stop to the relationship after walking in on his father and his new girlfriend having sex at the assisted living center.

If you read through the article, an interesting concept of a Sexual Power of Attorney comes up.  Dorothy’s daughter, who is an attorney, comments (maybe facetiously) that a Sexual Power of Attorney might allow the elderly to control their own sexual experiences when they reach a point of dementia.  I’m not sure how this sort of power of attorney would work and how you would designate a person to oversee your sexual future.  The concept however, is very interesting.

As I have said in previous posts, you should always designate someone to be your attorney-in-fact or proxy who you would trust your life with.  You need to trust this person not only to keep you alive when you’re in a vegetative state or to pay your health care bills when you’re incapacitated, but you also need to know that this person’s values and beliefs are in line with your own.  You need to be able to trust this person to make the same decisions you would make, or at least follow your intent and look out for your best interest.  I’m not sure Bob’s son in the article was looking out for his father’s best interest.  It seemed he was either trying to safe-guard his inheritance or to keep his father alive but lifeless to satisfy his own need to keep his father around.  Sometimes immediate family members are not the best people to designate for such important roles.

Gay pride week officially started in Boston last night with the raising of the flag at Government Center.  There will be a parade and a festival following it next Saturday, June 14th.  My firm will be hosting an informational booth at the festival trying to spread the word about the importance of an estate plan.

Massachusetts and (now) California are the only two states that allow same-sex marriages.  However, despite the two states issuing marriage license, most other states do not and will not acknowledge a same-sex marriage from those states.  And it’s not only the other states that won’t acknowledge same-sex marriage, but the federal government as well.  For this reason, same-sex couples face many challenges in an unequal system where they are recognized as married for some instances and not married for others.

A problem with this duality comes up, for example, in filing income taxes.  For a same-sex couple in Massachusetts, they file as married for state tax purposes but must file separate tax returns as single individuals on their federal tax returns.  This is not only an inconvenience but by treating same-sex married couples in Massachusetts as single, they are denying them the federal tax benefits of marriage.

Another example comes up when one of the partners in a same-sex marriage dies.  Federally, married couples can inherit from each other, estate tax free.  There is no limit to this exemption.  However, since same-sex married couples in Massachusetts (or California) are not considered married federally, they do not enjoy this privilege.  This might cause the surviving partner, in some circumstances, to pay a hefty estate tax and therefore lose the marital home or other assets.

Marriage is not only a term, a label.  Marriage comes with a lot of advantages, both financial and social.  Some of our laws are inherently based on the legal institution of marriage.  And when this government denies equal treatment and protections under its laws,  it is violating the Equal Protection clause of its Constitution.  As our own history has shown us, separate cannot be equal.  Since we have not learned from our history, let it be known and realized again that separate is not equal.

I want to announce the grand re-opening of my solo practice and new firm, Infinity Law Group.  This is also the grand reopening of Infinity Law Group itself.

Infinity Law Group was started in 2006 by Uyen Le Kry, Esq.  I worked for her during law school and she taught me so much about the practice of law, the value of good lawyering, and the drive to succeed.  She was also my first inspiration and role model in starting my own law firm.  Up until that point, I’ve never considered the possibility that there was more to the practice of law than being in-house counsel, associate at a firm, or working for the government.  She really inspired me to think more of my abilities and outside the box.

Yesterday we finally closed the deal on the firm and I am now the new owner of Infinity Law Group LLC.  We have both moved on to bigger and better things, as life should be.  I wish her the best of luck and I hope that I will be able to maintain and expand the good name that I’m inheriting.

Unfortunately, restraining orders (ROs) are common in family law practice.  They arise no only between boyfriend and girlfriends, but husband and wives, ex spouses and in-laws.  Some ROs are justified and some are clearly an act of malice against a former spouse or current lover.

ROs or Chapter 209A orders can prohibit the abuser from doing a number of things.

• No abuse - The court can order the abuser to stop abusing you or someone in your household
• No contact - The court can order the abuser to have no contact with you, either directly or indirectly
• Vacate - The court can order the abuser to stay away from your home or workplace by a specified number of yards
• Custody - The court can order that you have temporary custody of your minor children
• Support - The court can order the abuser to pay alimony and child support
• Damages - The court can order the abuser to reimburse you for expenses or damages incurred as a result of the abuse
• Impound address - The court can withhold your address from any court proceedings and keep it confidential from the abuser
• Treatment recommendation - The court can recommend the abuser to attend a treatment program but cannot order them to do so unless they have already violated a RO
• Surrender of firearms - The court may order the abuser to surrender firearms, licenses to possess firearms, or firearm identification cards.

ROs can be filed in either the district court, probate court, or superior court.  Superior Courts however are not equipped to handle ROs and are limited in their jurisdiction.  It is better to either file in district court or probate court, depending on your particular situation.  If you already have a case pending in the probate courts (divorce, custody, guardianship), then it is a good idea to file any ROs in the same court so everything can be adjudicated together.  ROs can also be filed at police stations after working hours.  These are emergency ROs and are only valid for a period of no more than 24 hours.  You are then required to appear in district court the following day to get an extension, and then 10 day after that in order to extend the RO to one full year.

RO hearings can be considered a mini-trial.  Issues such as burden of proof and production, rules of evidence and proper court procedures must be considered.  If your abuser has an attorney present at any of the RO hearings, it is a good idea to have an attorney of your own to help you defend yourself.  There are instances when your abuser can ask the court for a reciprocal RO and the court may grant Mutual ROs.  Because of this and many other reasons, you should have an attorney stand with you when asking the court for a RO.

Lastly, it needs to be said that a RO is simply a piece of paper.  It empowers police and the court to exact harsh punishment to an abuser for violating a RO but the piece of paper will not protect you if the abuser really wanted to hurt you.  If at any time, you feel in danger for yourself or your family, seek help through local police, hospitals, domestic violence shelters or counselors.  Only you have the power to protect yourself and your family.

This month’s ABA Journal Magazine had a really great article about the pros and cons of probate administration.  Probate is the court procedure that allows for the oversight of a deceased’s will and estate.  They make sure that assets and legacies go where the deceased wished it to go.

In recent years and even in my own practice, setting up ways to avoid probate has been some of my client’s main goals.  This is because probate can be an expensive and time consuming process for the potential heirs.  Attorney’s fees along with possible challenges to the deceased will can lead to delays and strife among family members.  As such, when possible, probate should be avoided.

Probate is a good vehicle, as the article states, for oversight when you’re in a particular situation that would benefit from oversight.  The article gives some examples and is well worth a read to practitioners of trust and estates.

Plotting Against Probate