Wednesday, June 27, 2007

When Same-Sex Partners Fail To Formalize Their Relationship

Although Indiana law does not recognize marriages or civil unions between same-sex partners, there are many things that can be done to formalize the relationship in the eyes of the law in a way that protects the partners and extends respect for their relationship. General powers of attorney and health care power of attorneys can make it clear that a life partner will step in and manage the affairs of the other in the event of incapacity or disability. Same-sex partners can express their intent to own their property jointly and equally through cohabitation agreements, or by titling their property and bank accounts as joint tenants with rights of survivorship. And each partner is perfectly free to execute a will naming his life partner as the beneficiary of his estate. Unfortunately, many same-sex partners fail to contact an attorney and take these relatively simple, legal steps to formalize their status as life partners. A case decided this week by the Indiana Court of Appeals painfully illustrates a heartbreaking outcome which can occur when this happens.

The case In Re The Guardianship of Patrick Atkins involves two gay men who had been life partners for 25 years. Patrick Atkins and Brett Conrad met and became lovers while they were both students at Wabash College in 1978. The men have "lived together and have been in a loving and committed relationship" since 1978 according to the court's findings. Like happens in so many same-sex relationships, Patrick's parents "vehemently" disapproved of his relationship with Brett. A letter Patrick wrote to his family in 2000 explained how deep his love was for Brett and how much he wanted his family to accept them for who they were:

I want you all to know that Brett is my best friend in the whole world and I love him more than life itself. I beg all of you to reach out to him with the same love you have for me, he is extremely special and once you know him you will understand why I love him so much. Trust me, God loves us all so very much, and I know he approves of the love that Brett and I have shared for over 20 years.
Patrick's mother refused to accept his lifestyle. She believes that homosexuality is a "grievous sin" and that Brett and those who accept he and Patrick's relationship are "sinners" and are "evil." Nonetheless, Patrick worked for the family's business earning a six-figure income. Brett, who earned much less than Patrick as a waiter, pooled his income with Patrick's in an account titled in Patrick's name only but from which they paid their joint living expenses. They purchased a home together which they owned as joint tenants. And they invested extra money in their bank account in an investment account titled solely in Patrick's name.

Life turned upside down for Brett after Patrick suffered a near-fatal ruptured aneurysm while on a business trip to Atlanta in 2005. Patrick was hospitalized in an Atlanta hospital for six weeks, during which time Patrick's family endeavored to prevent Brett from visiting his life partner. Hospital staff ignored the family's orders and allowed Brett to visit Patrick when the family wasn't present. Patrick's mother told Brett during her son's hospital stay that "if Patrick was going to return to his life with Brett after recovering from the stroke, she would prefer that he not recover at all." Patrick was later moved to a nursing home in Carmel to recover. Brett visited his life partner daily after regular visitation hours so Patrick's family would not see him there.

Fed up with being shut out of Patrick's life by the family, Brett filed a petition for a guardianship over Patrick's person and estate. The Atkinses intervened to be named Patrick's guardian, alternatively, and Brett eventually amended his petition to limit it to a guardianship of Patrick's person. A court-appointed Guardian ad-litem (GAL) and a neuropsychologist determined that Brett's presence in Patrick's life was beneficial to his rehabilitation and recovery process. Nonetheless, the Atkinses later moved Patrick to their home where they have denied Brett any contact with their son.

Six months after Patrick had become incapacitated, a trial was held to determine his guardian. Although Patrick could walk, talk, bathe and feed himself, he was not allowed to be present for the trial. As the Court of Appeals would later note in its ruling, this was a fatal mistake on the part of the GAL, who should have insisted on his presence. The failure of the GAL to require Patrick's attendance at the guardianship trial acted as a waiver of his right to be present. Nearly six months after the trial was conducted, the trial court judge determined the Atkinses and not Brett should serve as co-guardians for their son. Adding further insult to injury, the trial court denied any visitation rights to Brett and gave the Atkinses sole authority to determine and control visitation. The court further ordered the home Brett and Patrick owned jointly be split and divided equally between Brett and Patrick's estate, and that its contents be split equally as well. Brett was allowed only a third of the money in Patrick's bank account and none of the funds in the investment account.

Disappointed with the outcome, Brett appealed his case to the Court of Appeals. At this point, I would note that if Patrick had simply executed a durable power of attorney in Brett, the preferred guardian of Patrick's estate would have been Brett. Instead, the statute gives a preference to Patrick's parents. The court could only choose Brett over Patrick's parents if it determined that action to be in the best interest of Patrick. Although the Court of Appeals felt Brett made a compelling argument, it was bound by the trial court's determination unless it found the court abused its discretion in choosing the Atkinses over Brett. On that score, the Court of Appeals found sufficient evidence in the record to support the choice of the Atkinses, notwithstanding "his mother's astonishing statement that she would rather he never recover than see him return to the relationship with Brett."

The Court of Appeals did provide some important relief for Brett. It found the trial court abused its discretion in barring Brett from visiting Patrick. The court only had the testimony of one expert who spent about one hour examining Patrick and originally stated he was unable to offer an opinion to support its finding. Dr. Jonathon Mangold later opined that "visitation with Brett may not be positive for Patrick from a psychological standpoint." He based his expert opinion solely on the basis of second-hand information according to the Court. "Indeed, the overwhelming wealth of evidence in the record, as well as common sense, establishes that it is in Patrick’s best interest that he continue to have contact with Brett, his life partner of over twenty-five years," the Court found.

The Court of Appeals denied Patrick's requested relief to receive a portion of the investment account. Essentially, the fact that Patrick had titled it solely in his name controlled the outcome here. The Court of Appeals also ordered the trial court to award reasonable attorney's fee and costs he incurred "in good faith" for the benefit of the protected person. It found the trial court acted erroneously by refusing to pay Brett's attorney's fees.

This is one of those cases where a trial court judge could be personally biased against a petitioning same-sex partner and, yet, arrive at a decision which is nearly impossible to overturn on appeal, although I have no reason to believe the trial court judge in this case disfavored Brett because of his homosexuality. In fact, from my own personal experience in Judge Steven Nation's court, I've found him to be very fair in his treatment of same-sex couples. From my personal standpoint, however, I simply could not have ignored the 25-year relationship between Brett and Patrick and the outlandish statement of Patrick's mother that she would rather he never recover than return to his relationship with Brett. Tradition, however, is going to favor the parents in circumstances like Patrick's.

It should be noted that Patrick's parents are very prominent Hamilton Co. residents. They own Atkins Elegant Desserts and Atkins Cheesecakes. While I'm extremely sympathetic to Brett's plight, I also find it difficult to understand why the two never bothered to take the simple steps that were necessary to avoid the unwanted predicament he finds himself. Please take note of what happened here and, if you have a loving, same-sex partner, don't make the same mistake Patrick and Brett made.

Judge Baker wrote the Court's opinion and Judge Robb concurred. Judge Darden wrote a dissenting opinion in which he argued for leaving the trial's court's order undisturbed. Hat tip to the Indiana Law Blog.


Unknown said...

That's a very sad story and excellent advice. It falls under the broad category of things people don't plan for because they don't think it will happen to them.

Anonymous said...

I have traveled the world over and marveled at Atkins's cheesecake. I have bragged on it to restaurants in New York, Miami and New Orleans. I know one restaurant tried it after I suggested it, and now place it on their menu. If you haven't tried the turtle variety....well, you get my drift. It is simply the best cheesecake anywhere. I think the reason is, they skimp on nothing. Only the finest ingredients.

And it will never, ever touch my lips again. Not that my waistline would object.

The Atkinses should be ashamed. I'm writing them today to tell them how much I've appreciated their product. And that I'll work as hard to boycott it, as I previously did to promote it.

Shame on them. And, excellent advice, Gary.

God is weeping today.

Update, please, on Patrick's condition?

Jay C. Howard said...

I'm also going to write this family and let them know I'll never allow another of their "hatecakes" into my home again.
Any mother that would rather see her son dead than gay is a disgusting monster.

Anonymous said...

Someone should register the domain name "" or similar and try to begin a wider campaign against this monsterous woman and her family business. It's be easy enough to put up a website or simple free blog.

I also think that doing a couple minute video about the horror of this situation for upload to YouTube could generate a lot of interest, as well.

Sheesh! This is a very sad and troubling story.

Anonymous said...

This deeply saddens me. A parent's role should be to love thier children and then set them free, not hate them for who they truly are and then ever after control them.

Honestly, I'd rather have a home-made (with love) cheesecake anyway.

Anonymous said...

Here is the contact e-mail for Atkins Intl Foods according to the website.

Lisa Atkins-Milner
National Accounts Manager

Anonymous said...

Gary's advice is sound and wise.
HOWEVER, there is an underlying assumption to the 'question' of why same-sex couples don't execute these precautions. The asumption is that we all can afford seeing a lawyer and having those things drawn up.
We have contacted 3 different attorneys and, to be frank, we can't afford any of them right now at $150 to $300 an hour.
Just like health insurance, we cross our fingers and hope that nothing happens and that things will get better next year. We have got the 'Office depot' wills but...

Anonymous said...

There is an article published today(July 3rd) on the Online edition of the Indianapolis Star entitled " Time out for prayers
At 3 p.m. daily, Atkins president leads workers to pray for others, themselves".
If this is the same family, this article and reporter missed the real story.

Anonymous said...

The Author of the July 3 Star article is Katie Merlie. I spoke with Ms. Merlie by phone this afternoon and she stated that she had "no prior knowledge" of Mrs. Atkins. She stated she did not konw about or care about the problems of her son. She stated that her job is to write religion articles and not to research the people about whom she writes. When I mentioned that I found it irresponsible to give free publicity to such a person, she curtly thanked me and hung up. Shame on the Star for printing such a piece of fluff, and God help us all if this is how Christian people love their children.

Unknown said...

Can anyone help? A good friend of mine is just beginning to go through a situation like Patrick and Brett. A serious bicycling accident (while training for the South Florida AIDS Ride) has left our friend in the hospital for the past three weeks.. with extensive head injuries. At this point his parents have been ok at allowing his partner to make the decision but they had taken no steps to protect themselves. Does anyone know if there is an organization that helps with the legal steps and proceedings that he will have to do to protect himself financially and obtain guardianship? Looking for advice for a friend... kevin