Charles Koehler 0:11 I'm Charles Koehler, and this is Lambda Reports, a program by and for the St. Louis lesbian and gay community. Attorney Arlene zaremka is with us today to discuss legal matters that should be of interest to all lesbians and gays. Good morning. Arlene. Good morning. Welcome to Lambda Reports. Arlene Zarembka 0:30 Thankyou. I'm happy to be here. Great. Charles Koehler 0:32 I understand that you're an attorney in private practice in Clayton and represent a lot of lesbian and gay people in your work. Arlene Zarembka 0:39 Yes, that's correct. Charles Koehler 0:41 Great. You also, I'm told, do a lot of work in the area of personal planning. That's planning for the future. What can you tell us about that? Arlene Zarembka 0:51 Well, basically, what I mean by that is that obviously all of us have to think about the fact that someday we are all going to die. Someday, most of us will probably get sick and perhaps not be able to make medical care decisions for ourselves. We also may need to be able to pay bills that we can't that when we're incapacitated. So that by personal planning, I think, in terms of both making plans in terms of distribution of property in the when a person dies as to who they want to get their property, but also while they are still living, making decisions as to how medical care decisions will be made, whether or not you want to have someone to have access to your financial affairs in order to be able to take care of you and make decisions for you. You can also, in terms of personal planning, look at making decisions about whether or not you want life support systems to be maintained on you if you have a terminal condition and death is imminent. Charles Koehler 1:45 Why would these concerns be any different for a person who might be lesbian or gay than they would be for any other person walking the street that would be straight? Arlene Zarembka 1:55 Well, you're certainly right that, in fact, everyone should be concerned about these things. However, because of the way the law is is probably more important, or I should say, more crucial, for a lesbian or gay person to have certain documents in place than it might be for a heterosexual person. The reason is that the law, if, let's say someone is sick, can't make decisions for themselves, many hospitals or doctors will routinely turn to the spouse or a blood relative, a parent, a sibling, to help make medical care decisions for that person. In a case of a lesbian or gay person, if the lesbian or gay person wants someone other than a blood relative to make this partner, yes, such as a partner or even a close friend, to make decisions for them. It's going to be important that they have reduced that to writing that they've made, given a power of attorney to that person to make medical care decisions for them or financial decisions for them, so that they can make sure that their desires are carried out. And as I said, it's certainly important even for non lesbian gay people to do this. Hospitals are becoming more and more reluctant even to look to blood relatives to make decisions, because they're more and more worried about their legal liability if they rely on somebody else saying, Oh, yes, go ahead with this operation, or turn off the machines or whatever, and then might get sued by someone down the road saying, Hey, you shouldn't have listened to that person. So it's really important for everyone, but in particular for gay and lesbian people, because there is a tendency in the society to look to spouses or blood relatives for making those sorts of decisions. Charles Koehler 3:31 Can you give us some examples that have occurred where because the person didn't have documents that have presented a problem for them? Arlene Zarembka 3:41 Yes, there's actually two. One is particularly pertains to the lesbian gay community. Is a very recent and well known case involving a woman named Karen Thompson and her partner, Sharon Kowalski. This is in Minnesota. Sharon was in a very bad automobile accident, of course, this is totally unexpected. She became incapacitated and unable to make decisions for herself, and there was a need for a guardian to be appointed for her. Sharon had never signed any documents naming Karen as the person that she wanted to make decisions for her. And as a result, the court went ahead and appointed Sharon's parents as her guardians. And there, then entailed, ensued a battle, or a tug of war between Sharon's parents who wish to exclude Karen Sharon's lover from any sort of visitation or contact with Sharon. And in fact, successfully were able to do this for several years, until finally, recently, Karen Thompson was able to get the courts to reconsider the whole hearing Sharon had has verbally expressed that she wants Karen to be the person be taking care of her, but the courts had ignored that because Sharon had never put anything in writing. Even in Missouri, there is a case that does not involve a gay person, but involves similar issues. There is a woman in this case is going up to the United States Supreme Court. Court named Nancy Cruzan, she again was in a bad automobile accident, is now in a, at least the testimony seems to be that she was is in a persistent vegetative state. She's not terminal, but she's also not able to respond to people and to interact with people. All of her artificial life supports have been turned out off. However, she is still being given food and height and hydration. Her parents wish to discontinue the nutrition and hydration, because this has been going on for a number of years and there's been no sign of improvement. The Missouri Supreme Court has held that the hospital cannot turn off the nutrition and hydration, and now it's going up to the US Supreme Court, and in that case, once again, Nancy Cruzan had not signed any documents indicating what she wanted done in the event that she was in this sort of situation. I can't guarantee how the courts would have ruled if she had signed that sort of document, but it certainly would have aided the courts a lot, and her parents were stuck having to go into court only having some vague verbal statements that Nancy had said to friends here, you know, or her family from time to time, all of them in an accident. I don't want life support, but nothing in writing, nothing that seemed to have some seriousness of purpose. Charles Koehler 6:12 So it seems that for most intents and purposes, unless something is in writing, that it doesn't stand a real good chance of being considered as as seriously in a court of law as something in writing, as a document. Arlene Zarembka 6:26 Exactly. Charles Koehler 6:27 Okay, you keep on referring to documents. I understand we talked a little bit before the program that there are, there basically three documents. Arlene Zarembka 6:37 There's really, actually a mix of match. You can anywhere, I mean, up to probably four or five documents. Charles Koehler 6:41 It's like a Chinese menu. Arlene Zarembka 6:42 Let me go through them. Yeah, one document is a simply a declaration, stating what your desires are in the event that you are terminal, whether or not you want life support systems or not. Charles Koehler 6:53 And what would that be called? Arlene Zarembka 6:54 It's actually called declaration of, you know, a Joe Smith, okay, so it's just a declaration, and that's usually more in the vernacular, is called Living Will, okay? Secondly, in Missouri, you can name someone to be appointed as your guardian or conservator in the event that a court finds you you to be disabled or incapacitated. So another document that I prepare for some people is a nomination, where you actually state in writing who you would want the court to appoint in the event that you become disabled or incapacitated. And under Missouri statute, if someone goes to the probate court seeking to be your guardian or conservator of your financial affairs, the court is supposed to give first priority to the person named in this nomination. So that's another document. Charles Koehler 7:39 And that usually holds up rather well. And Arlene Zarembka 7:42 Yes, and if, except that, it has to been signed within five years of when the probate proceedings occurred. In other words, a court doesn't want to be looking at some document that was signed 25 years ago, and they don't know if you still want this person to be you're not your guardian or conservator. So it has to be a recent document within five years. A third type, well, two alternative types of documents, one would be a durable power of attorney that you give to someone to make healthcare decisions for you if you are incapacitated and unable to make those decisions yourself. The second type of document would be a durable power of attorney for financial matters or various types of investment matters. This power of attorney with regard to finances, can either go can go into effect at any point that the person designates that it is to go into effect. For example, the person could say, this is to go into effect immediately, in which case you're giving a power of attorney to the other person to act in your behalf. With regard to finances, immediately, you could say, I don't want it to go into effect until I'm 65 I don't want it to go into effect until a doctor or three doctors state in writing that I am incapacitated and unable to manage my own affairs variety of ways that a person can write that. There's also a, what's called a personal custodian law in Missouri, where you can keep, manage, I mean, keep control of your own finances. I should say, continue to be the legal owner of your own financial affairs, but you designate another person as your custodian, and that person is then given essentially the authority to manage your financial affairs. For example, you could open a bank account and put it in the name of someone else as personal custodian for you, and they have authority then to use that only on your behalf and at your direction. And this probably is not as common. Usually, powers of attorney are much more common in this custodian law. But again, an attorney could explain in detail for any particular person, given their particular circumstances, which documents would be the best ones for them to do? Customarily, if someone comes in and indicates to me that they want to give a power of attorney to someone, I usually recommend that they also do a nomination of conservator and guardian at the same time to sort of have two documents to make it clear not only that you want this person to have a power of attorney but also in the event that you become disabled and the court and somebody has to go to the probate court, that you've got this nomination form for the probate court. Charles Koehler 10:08 So having these documents, these three or four documents, depending on how you look at it, can really give a lot of protection, and you're saying to a lesbian or gay person, whether or not they're in a relationship or not. Arlene Zarembka 10:21 That's correct. And of course, as I stated originally, this can also give a lot of protection to other people, unmarried, heterosexual people, single, heterosexual people, even married couples. There are certainly situations where a spouse, a married person who's legally recognized by the state as married, does not want their spouse to be their the person to make these decisions, maybe because they feel the person is going to going to fall apart in a crisis and won't be able to make decisions. I mean, it's sort of thing where you want to pick somebody who is going to be able to heave a steady head on their shoulders and is not going to be so blown away by your disability that they can't, or even death, in the case of a will, that they cannot take care of things for you. So sometimes a person may not want to appoint their lovers, customarily, that someone will want to, but sometimes they want to appoint a close friend that they feel will be able to to handle things. Charles Koehler 11:09 Great. Would you have to have a lawyer to prepare these documents that you talk about? Or is it, Arlene Zarembka 11:16 I would strongly recommend it, I think Charles Koehler 11:18 Sounds like they're pretty if I can say heavy duty documents. Arlene Zarembka 11:22 I recommend it for a couple of reasons. First thing is, a person has, I believe it's very important that everyone understands exactly what they're signing when they sign it, and the consequences of what they're signing, so that having the advice of an attorney is certainly helpful in that regard, I do not recommend that people lightly give a power of attorney to another person. And so I always make sure that the person understands the seriousness of what they're doing, and make sure that they under that they are comfortable and totally trust the person that they're giving a power of attorney to, particularly you know what they're dealing with, making health care decisions or making financial decisions. And secondly, because of the way the court system is set up, a person could write this themselves, and then later on discover that the courts that they didn't write it clearly enough, or they used language that a judge felt was ambiguous or had a different meaning than what the layperson intended, and they could end up not really giving the proper signals to the legal system as to what they really intended. So I think it is important to have someone with legal training draft these things and to advise a person to go through their particular situation and go through the permutations of the different types of documents that might be needed. Charles Koehler 12:35 Great. I understand that you're also closely involved with an organization called PREP, which is an acronym for Privacy Rights Education Project. What can you tell us about that? Arlene Zarembka 12:47 Yes, that is an organization that was formed about three and a half years ago, right after the Supreme Court's decision in the Bowers versus Hardwick case that upheld Georgia's sodomy law. Privacy Rights Education Project is basically concerned about a variety of privacy issues, both sexual privacy issues, reproductive rights for women, right of privacy and financial affairs confidentiality with regard to AIDS and so forth. Most recently, we have launched a campaign to repeal that section of Missouri's sexual misconduct law that criminalizes sexual relations between people of the same sex. We plan to go to the legislature in January to present that to the legislature, we are now having a petition drive to get people to endorse to sign that they want this law repealed. We have over 3000 signatures now across the state of Missouri asking the legislature to repeal this law, and we're seeking more signatures. Charles Koehler 13:44 Great. I understand that it got a very welcome stamp of approval in an editorial by the St. Louis Post Dispatch. Arlene Zarembka 13:51 Yes. On June 30, they came out very strongly supporting repeal of this law. Charles Koehler 13:56 Are there any just in 30 seconds, any other activities that PREP is involved with or plans activities. Arlene Zarembka 14:03 Well, we have been extremely active in working on reproductive rights issues, supporting the calls to in to make sure that the right of abortion for women remains legal in Missouri. We would like it to be expanded from what it is right now, but at least we want to hold the line as to where Missouri stands right now. We were very active in lobbying with regard to AIDS legislation two years ago to ensure that there were confidentiality and anti discrimination provisions. Charles Koehler 14:30 Great, great. Well, that's all the time we have for today. But I'd like to thank Arlene Zaremka for being our guest and for more information on the organization PREP, or Privacy Rights Education Project. You can call Arlene at 726-6355, that's 726-6355. Or you can write PREP at Post Office Box. 24106, at St Louis, Missouri, 63130. This has been Charles Koehler for Lambda Reports. Tune us in next week. Transcribed by https://otter.ai