The Clinical Guide to Supportive and Palliative Care for HIV/AIDS

A Clinical Guide to Supportive and Palliative Care for HIV/AIDS • Chapter 18: Legal and Financial Issuesinclude one’s life partner (except in the State of Vermont) or close friends. This means thateven with a carefully thought out and well-executed declaration as to remains, an individualmay not be able to completely insure that her dying wishes regarding funeral and burial orcremation are honored. It is still advisable, however, to execute a declaration as to remainsbecause 1) several courts have found that a competent adult has the legal right to plan her ownfuneral and decide what will happen with her body upon death despite the existence of contrarylaws; 2) it provides clear direction to loved ones regarding an individual’s funeral and burialwishes; and 3) if a controversy does emerge, either between “next of kin” and life partners orclose friends, or within biological families as is also often the case, the presence of the declarationas to remains may be persuasive in resolving the dispute.PART 3.INSURING PROPER DISTRIBUTION OF FINANCIALASSETS, PROPERTY, AND PERSONAL BELONGINGSComprehensive estate planning is the only way to insure that the financial assets, real property,and personal belongings of a person living with HIV are distributed in accordance with herwishes. The advantage of estate planning is that, using conventional tools such as wills, trusts,bank accounts, and life insurance policies, an individual living with HIV is free to distributeassets to anyone she chooses, * and thus she can protect and provide for loved ones even wherethere is no biological or marital relationship. Without an estate plan in place, the assets of adeceased individual are distributed in strict accordance with State intestacy laws – laws thatspecify who inherits, and in what order, and which do so in a manner that recognizes only spousesand biological relatives as proper heirs.Despite the obvious advantage of estate planning, it is often difficult to convince a person livingwith HIV of the need to make a will or of the importance of financial and benefits planning thatwould ultimately provide for a smoother transfer of assets. There are many barriers to suchplanning, including the natural resistance to thinking about one’s death and the very commonmyth that estate planning is only necessary for people who are wealthy or who have significantassets available to distribute to loved ones. A person of limited means may convince herself thatan estate plan is unnecessary because she does not have anything that her loved ones wouldwant or value. In reality, however, this is almost never the case. Irrespective of financial assets,most people living with HIV will have personal belongings that carry important meaning forthose who are left behind. Over the years, there have been far too many stories of battles withinfamilies, or between family members and life partners or friends, over items of deep sentimentalvalue such as diaries and other personal writings, photographs, books and jewelry. A will thatspecifically designates who is to receive such items, or, a plan that includes giving some of theseitems away during one’s lifetime, can guard against future heartache and strife.* There are a limited number of exceptions to the general rule that a person may distribute assets to anyone she chooses. In manystates, a person may not use her will to disinherit a spouse. The specific laws vary from state to state, but the general remedygranted in these cases is the “elective share.” Elective share statutes provide that a specific portion of the decedent’s estate bemade available to the disinherited spouse. In addition, several states have statutes that protect children when it appears that theywere unintentionally disinherited. Finally, some states have statutes that limit a person’s ability to leave her estate to charity if sheis survived by a spouse, parent, or children. Nonetheless, the presence of these statutes does not bar an individual from leavingmoney, property, or other personal belongings to other loved ones, such as a friend or life partner. These laws simply limit theamount available to others by virtue of providing a mandatory share of the estate to spouses, parents, and minor children.378U.S. Department of Health and Human Services • Health Resources and Services Administration • HIV/AIDS Bureau