360 - Lawyer Up!
From the lawyer’s mouth
Our guest for this week is Multiamory’s lawyer, Melissa Hall.
Two and a half decades into Melissa’s happy polyamorous life, she got the chance to start her own law firm, Smol Law. Now she helps sustaining clients cope with life's little bullshit as a full time occupation instead of as a hobby.
She is committed to being as generalist as a form of specialization and to using access to legal resources to help people who would otherwise be at a disadvantage.
During this episode, Melissa addresses the following topics from her perspective as a lawyer:
Wills and end of life
What should I consider when deciding who is a beneficiary?
What about who I choose to be executor?
Medical decision making and power of attorney
I’d prefer my best friend be in charge, rather than my next of kin. What kind of paperwork do I need to set up?
Is it possible to designate who gets hospital visitation rights?
Are there ways to craft POA in order to include multiple people?
Cohabitation
How tricky is it to get a cohabitation agreement set up between more than two adults?
What about two or more people buying communal property? How to ensure that all the financial responsibility doesn’t just fall on one or two people?
Using other structures as alternatives to marriage
I’ve heard of some polyamorous folks setting up LLCs in order to share finances. How does that work? Are there benefits to that? Are there pitfalls?
Prenups
Any advice for prenuptial agreements in order to keep finances, big purchases, old debts separate?
Families and chosen families
Third parent adoptions.
Chosen family recognition legislative approaches.
How can you legally and financially protect yourself if you’re the homemaker or primary childcare provider of a polycule, especially if you aren’t gainfully employed?
Are there known recent examples of a multi-partner relationship being used as legitimate grounds for legal action against someone? Being used to reduce parental custody or access to otherwise shared financial resources?
Find more about Melissa on her law firm’s website, www.smol-law.com, on Twitter at @CasualLaw, or @Vrimj on other social media. Her Patreon website is here.
Transcript
This document may contain small transcription errors. If you find one please let us know at info@multiamory.com and we will fix it ASAP.
Jase: On this episode of the Multiamory Podcast, we're speaking with Attorney Melissa Hall. Not only is Melissa an attorney, but she is our attorney and we just realized has been so for over three years now, which is very exciting. Melissa's story is that early access to the internet meant that Melissa never even had to bother with experimenting with the whole monogamous relationship thing. Two and a half decades into a happy polyamorous life, she's got the chance to start her own law firm. Now she can help sustain clients cope with life's little bullshit as a full-time occupation instead of just a hobby. She's been doing that for us. Thank you so much for joining us, Melissa.
Melissa: I'm really happy to be here.
Dedeker: Can you talk about first of all, what you specialize in, and then second of all, what drew you to this work in the first place?
Melissa: My law firm got started about, let's say six and a half years ago when I was helping my wife do a name change in Virginia. I don't know if you've ever gone to somebody to do a name change. It's not difficult, but it is technical. It's hard to know how to fill out the paperwork. I was wondering how people who don't happen to have a wife who's an attorney do this kind of thing. We weren't married yet. Life happened and I moved to a new state and I had the opportunity to try to explore what it would look like to be that attorney for people who don't happen to have a cousin or a spouse that they can ask. That's how my law firm got started. I call it Smol Law, S-M-O-L because big law is the big serious firms who do serious litigation like Microsoft versus Oracle, so I do the opposite.
Dedeker: Your law firm is called Smol Law, so it is like the internet small like small boys small cute animal.
Jase: S-M-O-L, Smol.
Dedeker: I never knew that and I love that.
Dedeker: That is really interesting that you highlight that. I've definitely known over the years, I never grew up with that person, the second cousin twice removed, or whatever, who's a lawyer or went to law school, or whatever, to ask about these things. I had several friends who did and was always just amazed by what a resource that is. Even being able to ask just a random single law question how there's just so many barriers for being able to do that even for like you said, something as simple as a name change. You've also come to specialize, I think, not only in this kind of small scope of practice but also particularly with queer and with non-monogamous clients, correct?
Melissa: Yes. I have a lot of clients who are transgender, non-conforming, non-monogamous, or queer just because they feel like they're more likely to encounter bullshit that they need a lawyer for in their everyday life, but also because I have attachments to all of those communities.
Dedeker: That makes sense.
Jase: You're based in Seattle, which is where we're based. Does that mean that your practice is specific? If someone listening to this wanted you to also be their attorney, they want to be cool like us, they've got to be in Washington State?
Melissa: Unfortunately, the way lawyer regulation works, it's very much a state-based license. I am only licensed in Washington State. I am inactive in Florida, which is the only other state that I have the license in so I can't actively represent people there. There are a number of attorneys who deal with chosen family law you've had some on. For me, I can only represent people in Washington right now.
Dedeker: I was just going to ask about that, because we've had a handful of attorneys on who work in this particular field, and definitely seems like a very specialized niche. From your perspective on the inside of that niche do you see this growing or does it feel like it's our other attorneys afraid to venture into this territory? What do you see as far as the bigger trends?
Melissa: It used to be that there was one that was Diana Adams.
Emily: Of course.
Melissa: There was also an estate attorney in Atlanta, who did it on the down-low. There were people that you knew in small communities sometimes, but as a practice area that you list on your website, it's fairly new. I've seen more people get into it, and more people become verbal talking about it publicly as a practice area. Not only as it becomes more accepted, but also as there gets to be more we can do.
Dedeker: Can you elaborate on that a little bit?
Emily: What does that mean?
Melissa: It used to be that a lot of dealing with chosen family was arm's length that there wasn't a lot we could do to help protect people who were in relationships that weren't otherwise recognized, besides basically a simple will. Now that there's a new uniform parentage act, that includes potentially the option for third parents adoption. There are some cities in Massachusetts who are looking at recognizing families that have more than two adults. Things are changing and it's an easier practice area to understand what you do for people. Lawyers are lawyers. We're all kind of type-A, we don't like not having an answer. One of the things that happens is you see a ball roll. As people get into the area and figure out how to make it a practice area more people are comfortable making it a practice area.
Jase: Once you have answers you can give then it's more appealing.
Melissa: Exactly.
Dedeker: Everything-- Speaking of answers-
Jase: That's what we're here for.
Dedeker: We're here for all the answers Melissa. I did reach out to our Patreon community of listeners, I posted in our private Facebook group, I posted in our private Discord, letting people know that you are going to be on the show, and of course, giving them a big disclaimer. I'm going to give that same disclaimer now to our listeners that again, both Melissa and ourselves can't offer any kind of very specific, legally binding advice.
Take everything with a grain of salt. Of course, always consult professionals that live in your area, do research on what the laws and restrictions, and what the situation is in your area. Otherwise, we're going to dive into all kinds of things. We're going to dive into talking about cohabitation, creating structures that are alternatives to marriage, families, chosen families, other legal protections, and at Melissa's suggestion, we're going to start with death.
Jase: Whoa.
Dedeker: We're going to be really metal in this episode.
Melissa: That's the one thing you can't escape. Probably the thing that everyone listening needs to at least spend a little time thinking about. I don't care how young you are.
Dedeker: I dove into this myself. What? I think middle of last year or so I don't exactly know what spurred it on. It's not like I had a scare any kind of increased sense of my own mortality other than what a global pandemic might do on that front. For me, it was realizing I was just thinking through it one day and realizing like, oh, if I were to suddenly die, the laws where I'm at, the person who'd become the one who makes decisions about my stuff, or about my funeral, or who gets to come to my funeral is going to be someone who I don't know was going to stick the landing on that necessarily. It's someone who I don't know that I really trust to do that. I got to do something about that. That was what motivated me. Are there other reasons that you would suggest why people might want to start thinking about this, regardless of what stage of life they're in?
Melissa: The biggest thing, of course, is if you have a legally recognized family that doesn't support what you would want to have happen. The other thing is, especially if you are in intimate relationships that are not legally recognized. The more planning you do ahead of time, the easier it will be for the people you leave behind. You can write a will, that's great. You also want to have those hard conversations about things like life insurance. One of the simplest things you can do that doesn't require a lawyer at all is just go to your bank and set who your bank accounts transfer to upon their debt. There is a lot of things that you can do that aren't necessarily writing a will that are important, but also it's really important for the people you love in a crisis period to know what you want.
Emily: That includes also things like DNRs and stuff along those lines in terms of medical questions I'm assuming.
Melissa: Yes. Here I'm going to get into a little bit of a personal story. My first spouse, my husband, died when I was 30 and I had to be the one who made that DNR call for him. I was fortunate in that I knew exactly what he would have wanted. Even then, it was an ambiguous situation. More than anything else, a healthcare power of attorney and knowing what people want you to do in a crisis situation is the thing that I suggest everyone do. I also suggest that you consider not making it your closest partners.
Emily: Interesting.
Dedeker: Interesting.
Emily: That's fascinating.
Dedeker: Okay, yes, I think that that starts to get into because I think we got a lot of questions about-- okay, for instance, if I'm setting up a will, who do I choose as the executor? When I'm figuring out power of attorney, who do I designate for making these kinds of decisions? Let's back up a little bit. Can you explain a little bit about what an executor is, what power of attorney is, and then give us your opinion on how to choose people for those roles?
Melissa: Basically, when you are not in play, the law needs somebody to pretend to be you, whether because you're incapacitated or dead.
Jase: Right.
Melissa: We have various people that we let play you for legal purposes. A power of attorney is one of those. You do not have to be incapacitated to have somebody's power of attorney. Right now, my wife could go into our safe and we have a continuously executed power of attorney and she can pretend to be me for almost any purpose. For most people, that's probably not an appropriate choice but sometimes it's the appropriate thing to give someone a power of attorney to continue a business while you're going on a trip or something like that. They're a pretty flexible tool. They let you pretend to be--
Emily: Interesting.
Dedeker: Yes, power of attorney lets you kind of stand-in for that person in various circumstances and they can be super limited like I write power of attorney that allowed me to be my client's power of attorney for inquiring about this specific procedure with this specific doctor's office.
Emily: Wow.
Jase: Okay.
Emily: I didn't realize that it gets that granular potentially-
Melissa: Yes.
Emily: -but that makes sense.
Melissa: Yes, like it can be really focused-
Jase: Okay.
Melissa: -or it can be very broad and it can be springing, that is it comes into power under certain conditions like your incapacity or when you turn fifty, you can also be very flexible there. There's a lot of flexibility in these documents. Please don't get creative without an attorney, but I want to kind of give you some things to think about. When I work with people about end-of-life issues, I'm very fortunate in that I have a group of death doulas that help me.
Emily: Wow.
Melissa: Because these are not necessary conversations you want to be having with your attorney.
Dedeker: Yes.
Melissa: True facts, we are not trained in how to deal with people talking about their death for the most part.
Emily: Yes, that's potentially traumatic and over again for you.
Melissa: Yes. Well, it's not so much traumatic, it's just that I don't have the best information.
Dedeker: Yes. I know that was definitely something I struggled with when I was putting my documents together and like I said at the top response, just a strange thing to think about already. I think it makes sense if you're in an interaction where someone needs you to make these very like-- these are type-A decisions and you're just like I'm still wrapped up and even thinking about my own mortality at this particular moment, I guess that makes sense to have someone like a death doula who's more trained on I guess maybe marrying both the kind of functional logical aspects of this with the deeper emotional and existential parts of the conversation.
Melissa: Yes. I mean, for me, what would typically happen would be we would have this conversation and then months or years later, people would come back ready to write their will.
Dedeker: Oh wow.
Jase: Okay, so that--
Emily: Oh it takes that long, my goodness. Wow.
Jase: That's comforting because I started the process to mine after Dedeker did hers. I started it like six months ago and in trying to fill out things, I just was crying too much as I can't and it's been six months and I haven't gone back and I keep thinking like "Gosh, I got to get back to that. but it's just hard to think about."
Melissa: It is a hard conversation and having that conversation with someone who's attended good deaths.
Jase: Helps.
Melissa: Yes.
Emily: A Death Doula.
Melissa: Yes.
Emily: Yes, I was right.
Melissa: It's the comfort I can offer people. Also, a death doula doesn't have the client confidentiality concerns I do. They can help you ask somebody to be your medical power of attorney.
Jase: I see.
Melissa: Yes.
Jase: Yes, okay. Wow.
Emily: Can we circle back to you saying before that somebody who's your close partner or maybe a couple of close partners maybe isn't necessarily the best person to have as your power of attorney. Can you discuss the reason behind that?
Melissa: Yes. I mean, for me, personally, for many years, it was my metamour because I needed somebody who knew me well enough to know what I would want but also who would not feel guilty about making those choices.
Dedeker: Interesting.
Melissa: Yes.
Emily: Guilty. Meaning like saying DNR essentially. I see. Okay.
Melissa: Yes and I think that's the thing that people don't think about is like you're asking this person to decide to give up hope when you're living and that might not be the kindest thing to do to somebody who's already in pain that you're in this place.
Dedeker: Right.
Emily: Yes.
Melissa: Medical situations are not always 100% clear.
Dedeker: That does require some executive decision making as it were.
Melissa: Yes.
Emily: Yes. Fascinating.
Melissa: They might wonder years later "Did I do the right thing?"
Jase: Then what about the question of choosing someone to be your executor. Is that may be different than that could be a closer partner?
Melissa: Yes, executor is the person who is basically your ghost in the world. In Washington, we call them personal representatives just because we've decided to move away from formal language but--
Jase: Okay and I didn't even know.
Emily: Yes.
Jase: Good to know.
Emily: Yes, cool.
Melissa: It's the same basic role. It's somebody who gets to be your ghost. They go to the court, they get a piece of paper saying "Yes, for the purposes of wrapping up their affairs, you get to be this person." It is a thankless and difficult job.
Jase: Yes, okay.
Melissa: Yes. There's absolutely preferably a person in your life who needs that job. That might not be your nearest and dearest but I think most of us have somebody in our lives who needs a lot of paperwork would be helpful when they're grieving.
Dedeker: Interesting. That makes sense.
Jase: Yes. That does actually weirdly make sense.
Dedeker: Yes, I already think of all the people where I'm like "This is a terrible job for them in this case." and other people where it's like, "Ah, this would be a wonderful job for them." Also that decision-making.
Melissa: Yes, I think a lot of times we think about "Oh, who do I honor?" instead of, "Who when their emotionally distraught is going to find going to court soothing?"
Dedeker: Right.
Jase: Wow, yes.
Dedeker: Yes, yes. We got a lot of questions from people. The sense that I got from all these questions people are worried. People are wondering is there any way for me to designate who gets, let's say, hospital visitation rights? If I'm not married or if I'm married to one person but have another partner or if I want it to be my best friend or things like that, is it possible to do that?
Melissa: Well, sort of. Generally, I suggest that anyone you want to have hospital visitation, you'd be sure to have a HIPAA waiver for. It is not 100% but usually, people are willing to honor people who have HIPAA waivers getting visitation because it's a concrete example that you have some sort of discussion with them about your medical situation and you're close to them.
Emily: You can set that up preemptively?
Melissa: Yes.
Emily: Okay.
Dedeker: For me yes, when I was doing the process, it was part of the power of attorney process-
Emily: Got it.
Dedeker: -or is tangential to essentially with setting up the HIPAA waiver paperwork.
Melissa: Your doctor's office should have it. It's pretty routine as part of the privacy practices. You might not notice but it says, "I waive HIPAA practices with respect to these individuals."
Emily: Okay.
Melissa: I always suggest the people if there's somebody you want to visit, you at least have a HIPAA waiver set up and if you have a doctor's office that has electronic medical records, make sure you upload it there. It isn't 100% but it is one of the best choices that we have. COVID times, people just haven't been getting visitation. It is what it is.
Dedeker: Right.
Jase: Yes, right.
Melissa: However, in general, the person who has your medical power of attorney is usually somebody that medical staff will work with about who has visitation who doesn't have visitation? If there's somebody you do not want to visit you, please also put that in your medical power of attorney.
Dedeker: That's important.
Emily: Is power of attorney always designated to only one person, or is there ever a way in which to craft it so that multiple people could become one's power of attorney?
Melissa: You can always have multiple people. The problem with multiple people is that if they disagree, you have to have a dispute resolution mechanism.
Emily: Oh, wow. Goodness.
Jase: That makes sense.
Melissa: We need to also remember that this is all happening in emergency situations under-- Generally, I suggest somebody have a lead and a selection of people that they can tag in because it might not be a situation where it's appropriate for this person, or there's a particular situation where this person is more appropriate. One person with your durable power of attorney is called durable because it survives you being incompetent, which normal powers of attorney dissolve.
Jase: Oh, I see.
Melissa: Having multiple people is usually a really good idea, especially you want somebody who isn't the person you travel with the most often.
Jase: Could you set it up so you have a secondary person who is not someone who travels with you? Something happens to both of you, there's someone else who isn't there who's going to make those decisions.
Melissa: Minimum is one person. If they travel with you often, another person who doesn't travel with you often.
Jase: Got it.
Emily: I don't want to spend this entire time on wills, but I just have one last question regarding the difference between a will and a trust. What is the differentiation there and where and when is a trust like a good potential to have versus just a will saying, you get half and you get half or whatever?
Melissa: I am so glad you brought up trust. There are a couple of states including, specifically California, where the probate process--
Emily: Where I live.
Melissa: The probate process in California is, unfortunately, not great. Let's just say. It's frequently done in California to put everything in a trust to avoid the probate process because it takes forever and it's expensive.
Emily: I've heard setting up a trust is pretty expensive in California as well. Like really, really expensive.
Melissa: A trust is you basically say, here is the stuff, it goes for the benefit of these people and it happens during your lifetime. A will takes place on your death. It gets trickier. Your will can include something in-- Well, in most states, including Washington, you can have something called a testimonial trust, where you put a provision in your will that creates a trust if you need one, but it's done in probate, so it doesn't help the people in California.
Jase: I see.
Melissa: It is useful for people in other states if they have somebody who has like student loans or gets social security disability, who would need to have anything left to them in a special format. Trusts are a really broad like general-purpose tool in that they are an entity that exists to benefit people with something that it owns. If you don't mind a little digression. One of the things that frequently comes up when we talk about polyamory or the laws, is people talking about creating an LLC for their family.
Dedeker: We got a lot of questions about that.
Emily: We had questions regarding that. So, please.
Melissa: The problem with that is that under most states, including Washington's business incorporation laws, you have to have a business purpose or a business, including an LLC.
Emily: Like a podcast.
Dedeker: Your business firms can't just be more love.
Melissa: Yes, exactly. One of the ways that you can deal with having a thing that is your family is trust.
Dedeker: I see.
Melissa: It is expensive and a little difficult. Is probably only appropriate for groups that have a lot of assets. It's also very nice if you have minor children involved because you can have one group of people that makes decisions and a broader group of people that benefits. It can be a relatively flexible entity, a trust, and it can be a way to do here's the thing that is our family, but it is like you said expensive, less expensive in most places than in California. California--
Dedeker: Everything is expensive in California.
Emily: Nickel and dime you for everything.
Melissa: It is the entity that's the most appropriate if you're trying to do something that just holds all your family assets.
Dedeker: That's a good segue for us to move on to some of the other topics that we got questions about. Backing up a little bit from family creation, we got a lot of questions about cohabitation, in particular. People wandering how tricky is it to get a cohabitation agreement that's set up between let's say more than just two adults, or what do we do if there's two or more of us wanting to buy communal property? How do we make sure everyone's protected? The financial responsibility doesn't just fall on one or two people. Do you have any thoughts about that?
Melissa: Okay. First of all, Washington is state-specific. We have laws about committed intimate relationships. Having a cohabitation agreement before you move in with someone is a really good idea or else there is a chance in Washington state that the court might decide that you had a cohabitation agreement and the terms or whatever they decide.
Dedeker: I see.
Jase: If you didn't want them to be whatever you worried the default might be. Setting something up in advance is the way to go.
Emily: Can you just quickly say what a cohabitation agreement is?
Melissa: Oh, sorry.
Emily: No, no, please.
Melissa: A cohabitation agreement is basically a prenup for people who aren't married. The best time to get divorced is when you're getting along. You can pre-negotiate how things are going to be divided if you do decide to separate. Cohabitation agreements, prenups are both really useful for that. You can absolutely have a cohabitation agreement that accounts for more than two adults. It shouldn't be super tricky.
I can't vouch for how community-aware most other attorneys are, but generally speaking, can you do this thing, but for three people? You probably can't do it for prenup, but cohabitation shouldn't be a huge issue. Now, two or more people buying into communal property. Remember how we talked about you need a business purpose. That's why an LLC isn't a great fit for a family. Can be a great fit for when you're doing multiple people owning a property.
Jase: Because that's the purpose, right? It's like the purpose is to buy this house. Okay.
Dedeker: Got you.
Melissa: Property ownership, completely legitimate reason to do an LLC, might mess up your financing.
Jase: Because you won't have any credit history as an LLC, and that could affect you.
Melissa: You can usually do a personal recourse loan, but you might not be eligible for individual loans like HOA loans.
Jase: Oh, I see.
Dedeker: Got you.
Melissa: Working that out with your lender and your lawyer is probably a really good idea. You can do a cohabitation agreement, you can do a property settlement agreement in advance with that. You definitely want to if you're buying property with more than one person. You also need to think about how you want to hold the property. Here's where we get into right of survivorship.
Jase: What happens if one of you dies, but also if one of you leaves just as like I don't want to be here anymore? Does include all of that? Is that right of survivorship?
Melissa: If one of you leaves, generally speaking, you have a right of division, which means you get to split it up. If you can't split it up, the court will decide what's fair. Usually, that's 50/50 but who knows? You probably don't want to get to the point where you're in a division. Basically, you don't want to get into court is what any transactional attorney will tell you most of the time.
Dedeker: Generally good advice. Good life advice.
Melissa: As soon as you've gotten into court, most of the time, people have already lost. There are some exceptions. Division is what happens when you leave and everyone's still alive. Survivorship is what happens to the property if someone dies. If you have right of survivorship, it transfers to the co-owners. That isn't an action and probate. It's just seen as it miraculously is all of yours now, similar to how community property works and community property states which Washington is one of. Without right of survivorship, it goes to your heirs and it passes through your wills or passes through the default will that states rights for everyone which we call being intestate to what the state considers your closest kin.
Dedeker: Let me just take the opportunity to also say. Jason, I went through the process of getting a cohabitation agreement pulled up after a great referral from Melissa to the Lavender Rights lawyers who are also based here in Washington. What I really appreciated about going through that process is it's like putting on paper all these conversations that really we should all be having in our relationship all the time, whether you're monogamous or non-monogamous, whether there's six partners involved or two partners involved. There's questions about just being able to sit with all the uncomfortable possibilities of what if one of us wants out of the relationship, then what happens to the finances here or the objects that we share here?
Jase: What if one of use want someone else to move into the property, then what happens? What if one of us dies, what happens? All that kind of stuff.
Dedeker: It's a pain, but really good conversation prompt, at the very least.
Melissa: What do we do if we disagree about whether or not to remodel?
Jase: Yes. Who's responsible for those costs? It's like our refrigerator breaks. All that little stuff.
Melissa: There's a lot of the details about home ownership that people don't necessarily think about, that are useful to even if you don't sign it, looking at a cohabitation agreement is a good idea.
Jase: That's clever. I like that. That's good.
Emily: It could be an exercise, interesting.
Melissa: I've had them go all over the place. Cohabitation agreements or contracts, they can't determine what happens with the property the way title can, there's a slight difference and if you have a cohabitation agreement, you get to sue on the contract. You don't necessarily get any ownership of the property, unless you're both on the title. That's the other thing that you need to know. There's a real difference between contract law and property law and you don't necessarily get property of rights, unless you are on the deed.
That's a lot of weird detail, but just to get back to wills, one more thing that I just wanted to say before we move on, is that we talk a lot in lawyer circles about how money flows and wills.
Jase: What do you mean by that?
Melissa: Financial planning is what lawyers see wills as for, for the most part.
Jase: In the event that somebody dies?
Melissa: Yes, like this much goes to this person this is an absolute brick house. This is the percentage. There's a lot of different things you can do with money, but the other things that you need to realize about a will is that it helps recognize who your family is. When I have had people heartbroken over a will, it's because they haven't felt recognized as family.
Emily: That's a really good way of putting out.
Melissa: It's worth thinking about that too, you need to recognize who the law will see as your family, just so that they feel like you didn't accidentally forget to include your sister, but it's also an opportunity, particularly for those of us with chosen families, to make a statement about who we see our family as and in a lasting way. Because wills are more likely than most of the other things that we talk about to survive.
One of the ways you can think about it is it's a message in the bottles of the future. about who you were, what was important to you and who your family is.
Dedeker: That makes a lot of sense because we did have a question about what should I consider when I'm deciding who's a beneficiary? Of course, it can be very easy to, I think, just think about the money, let's say, or your possessions or things like that. I think that what you just said, at least, for me, really clarifies a lot. I've even revisited my will a couple times over the past year or so, and sometimes been like, "Oh, do I include everybody? Do I conclude nobody? Who is this?" Because no one trains you how to do this. No one trains you how to make these decisions and that, I think really cuts to the heart of it. Yes, there's the logistics and there's the decision-making and there's the money and also, there's that sense of taking a stand of really being able to clearly name these, the people who are my family.
Melissa: When I write a will I generally have a section just about who the person's family is because you have recognized family, you have chosen family and like even if you don't leave people anything, naming them as family and your will is that last thing you can give them, which reminds me of something else that I forgot to mention when we were talking about medical power of attorney, sorry.
The person you give medical power of attorney to, please, consider wherever you put that document also leaving just some simple instructions about what you want and what you consider important and like how to make this choice. Because the power of attorney document, they can be pretty detailed. They can be pretty general, but fundamentally, you're asking somebody to make a decision and it's worth just having something in your own words for that person in that moment.
Jase: That was the part of writing my will, that I kept crying, was instructions part. It's like, "Here's the notes." That's the part that I had a hard time with.
Dedeker: I had a hard time with it, but I also, my control freak nature had a wonderful time with it.
Emily: Yes, you're Type A. Your type A personality was like, "Yeah."
Dedeker: Yes, just being able to be like, "We're going to do this and you're going to do that, and then this is the music you're going to play at my funeral and this is how I want my body to be dealt with. Then you're going to do this and then you're going to invite these people." That–.
Jase: These are all the people who are going to be in the flash mob.
Melissa: If you're in Washington, let me just give a shout out to endoflifewa.org. They're an end of life organization that has a great model, durable power of attorney for medical care and you can do that yourself. It's very detailed. It covers almost all of the issues. I don't necessarily do it that way. I have a power of attorney that is just listen to this person. It really depends on how you want to interact with medical people. I generally don't want medical people to know my business. You need to know who to listen to, that's as much as you need. The detailed instructions are all there. They're for my wife or whoever's making that choice.
There's a lot of choices about that, but I just wanted we talk about this and we tend to get lost in the details, but what we're really talking about is leaving the people we care about instructions about how to take care of us when we can't tell them.
Jase: Wow.
Dedeker: Really really important.
Emily: Absolutely.
Jase: Well, this has been great so far. We're going to move on and talk about families, chosen families, how do you lawyer, stuff like that, but first we're going to take a quick break and discuss some of the ways in which you can help this podcast out. There are so many podcasts out there now that are out behind a pay wall and we're committed to not being one of those podcasts, but that also means that ads have to be part of the equation. Take a moment to listen, if you can. If you check out these ads, it helps us a lot and we can continue bringing you all of this content for free. Thanks. We appreciate it.
Dedeker: We are back. We are here with Melissa Hall, Attorney At Law and we got a lot of questions for you Melissa, just related to families. To family protections, what happens when multiple people, more than two people want to be able to have legal parenting rights or raise kids together? How do we deal with custody? I know this is something that you mentioned being near and dear to your heart. Maybe before getting into specific questions, can we just start with a general overview of what do you see happening as far as parenting and chosen families these days?
Melissa: First of all, let's just start with the good news, at least, in Washington State, third parent of adoptions happen. At least, to my knowledge there are also more than three parents adoptions that happen and that's fairly new. That really changes the landscape for people who are considering having children inside of a poly relationship, because it used to be like, "I don't care what happens, I can't give anybody else custody." That's not true for every state.
I can give you some hints on how to know how possible it might be in your state, but it is a big change to the landscape and a big thing to consider, if you're considering bringing small people into your relationship.
Jase: It's something that I've definitely, in the last few years, been seeing more and more in my newsfeed about either such and such specific county in some state started allowing this or has set a precedent for it or maybe a whole state, but often it's even regional within a state, like at the county level or even the city level.
Melissa: Okay. First of all, dirty little secret. What the law is is not a simple answer. When I say third parent adoptions are possible in Washington State, I mean I can go and get a third parent adoption in King County under most circumstances with the social worker that I like. Whether or not you can get one in Walla Walla, probably not.
Jase: It depends who's overseeing it and who's approving it and all that?
Melissa: Yes. Particularly in family law matters, there is a lot of discretion and fall for the individual judges. What's possible varies a lot, depending upon which judge you have, what county you're in, that kind of thing. That's just a truism for all of law, but it's particularly true in family law. Adoption and divorce, where your forum is a huge difference maker.
Jase: That's good to know.
Dedeker: Yes, one of those hints that you teased out, of like being able to suss out whether this is possible in your state?
Melissa: Oh, okay. The reason that third parent adoption is possible in Washington State, is because of the uniform parentage law. The most recent version of the uniform parentage law does not automatically dissolve parental rights, if the parent joins in the petition for adoption, which sounds hyper-technical, but this is what lets multiple people adopt. Because it's a uniform law, there is a thing called the uniform law institute, that tracks the adoption of the most recent version of this law.
Jase: Just to make sure that I'm parsing all the legal words you said, basically that's saying that if I, as the parent of this child sign off being like, "Yes, I totally want this person to adopt my kid, but I'm not signing away my rights as parent." Is that basically what you're saying?
Melissa: Yes. That's possible under the most recent version of the Uniform Parentage Act, if it's adopted as written.
Jase: Wow. Okay.
Dedeker: Interesting.
Melissa: Basically you say, "Yes, I'm good with this. No, I'm not willing to give up my parentage rights. Let's all join in this happy situation together."
Dedeker: Right.
Jase: Wow.
Melissa: You can go to the Uniform Law Institute and track the adoption or not adoption of this most recent Uniform Parentage Law in your state.
Dedeker: I see. Okay. That makes sense.
Melissa: Before that, what would happen would be people would sometimes go ahead and do a parenting agreement. That whole thing we were talking about before the best time to figure out what happens when things go wrong, is when things are go right. Unfortunately, that's not binding and it doesn't work as well with children because things change a lot just natively. What you're going to do if you break up when you have an infant and what you're going to do when you break up when you have a teenager, are likely very different plans. That was the previous best protection still potentially useful, but a thing that you should know.
The other thing that we need to talk about when we're talking about parentage is the presumption that goes with marriage. If you are married to somebody and one of the people in that marriage has a baby, the presumption is that that baby belongs to the people in the marriage. It's called the marital presumption and it's a pretty strong presumption. You can't even challenge it in many states, if you don't do it within a certain time after the baby is born.
Dedeker: Oh, wow.
Melissa: The biology stops mattering after two years for most people.
Dedeker: Gosh.
Jase: Wow. Interesting. Gosh. Okay.
Melissa: That goes into the overall theme with parentage law, which is the major concern of parentage law is to prevent heterosexual hijinks. It's not to accommodate poly people or queer people, to the extent that we are accommodated, it is an accident or-
Dedeker: Right, yes.
Jase: Or it's something that lawyers have found ways to be like, "Ooh, let's use this thing to try to help us out," but it wasn't made for that or not made for us.
Dedeker: Heterosexual hijinks is our next podcast.
Emily: Oh my.
Jase: Can you imagine?
Emily: Let's not and say we did. Yeah.
Dedeker: None of us are quite heterosexual enough, but good title, though. I'll just take that in the back pocket for something else.
Melissa: Those are the kind of things that you need to know when you're dealing with parentage, you need to know what the rules are in your state. The part that's hard is finding a family law attorney who actually knows what the rules are in your state, can be tricky. The other thing that you need to know is who's on a birth certificate is evidence, but it's not a legal conclusion.
Jase: Can you elaborate on what that means?
Melissa: A birth certificate is considered an administrative record, at least, from Washington State. It's basically like a parking ticket. It's evidence that a thing happened, but it isn't considered a determination that a thing happened, if that makes sense. That takes a court order. There's a big difference between being on the birth certificate and having an adoption order or a parentage order.
Jase: Because those are more conclusive, that has been decided, not just birth certificate. We just print those out willy-nilly when babies pop out?
Melissa: Yes.
Dedeker: Whoever's standing there, we put their name on it and it's good enough.
Emily: Yes, like this guy.
Melissa: That means that a judge has taken a look at it, come to a determination, it's a finding of fact. That means that the full faith and credit clause is invoked. It's probably enforceable in all 50 states. Now, I don't know of any multi parent adoptions being enforced or not enforced in states where they're not recognized. I keep looking for that, but it's not necessarily a thing that you're going to hear about.
Jase: Right. That's something that came up on, gosh, one of our previous episodes where we talked about law on this show, but that thing of like so many of these types of cases get settled out of court because people are just like, "I'll do whatever it takes to just not lose my kid or not have a problem. So I'm not going to take this to court and try to set a precedent" or whatever. It sounds like maybe that's what's happening here?
Melissa: Yes. I know of one or two reported decisions in the United States that involved polyamory.
Jase: Just not a lot?
Melissa: No.
Dedeker: We did have a question about that. Are there any recent examples of that? I know that I've heard of a couple different cases that have floated through the air, both positive and negative or both positive, where it's set a really nice precedent and also negative, where someone's custody was revoked or things like that. I guess that is the question of, is there anything recent and precedent that you've noticed?
Melissa: Unfortunately, the most recent precedent I know of is 2005 in Pennsylvania.
Emily: Oh wow.
Jase: Oh, that's a long time.
Emily: It's a while ago.
Melissa: Yes, because custody cases don't get to appeals very often.
Dedeker: I think, I feel like Diana Adams and also Eli Sheff talked about that quite a bit.
Melissa: It's a really hard area of law and not one I practice. I don't do dissolution. Unfortunately, I am not necessarily up to date on that.
Dedeker: Right.
Jase: Got it.
Melissa: Which is why I'm like, "No, you want to get as many people as possible parentage that way. It's not an issue. You have to do custody." I know informally Washington State, we are equipped to handle child support from up to four parents on just infrastructure level.
Dedeker: Okay, great.
That's good.
Jase: We have what? We have four lines on the paperwork or we have four slots in the box where you put your checks? What do you mean?
Melissa: The agency that reports child support payments has software that will accommodate for people who are required to pay child support.
Dedeker: It's so funny how it does come down to just that infrastructure.
Jase: They don't have another slot in the database.
Melissa: Yes, and I don't like official report about this. This is the stuff that happens, when you direct to people, but there is this expanded recognition of people can have more than one or two parents. A lot of that is being led by artificial reproductive technology, but poly people benefit from it.
Jase: It's like we're picking up all the scraps from everyone else.
Dedeker: Just cobbling it together.
Emily: Whatever we've got.
Melissa: I mean, I understand that there's this desire to press the political cause of polyamory, but one of the things that I really appreciate is how, particularly Diana Adams and some other people have decided, that it makes more since to advocate for chosen families of all kinds.
Dedeker: Yes, correct.
Melissa: Because if chosen families get what they need, then we get what we need. We have talked about having a chosen family recognition ordinance in Seattle. It probably wouldn't have any legal effect, but sometimes it just matters that somebody says this person is your family.
Jase: How come you can mention with the will? Even just having that official somewhere, so that, at least, someone can point to that and be like, "No, I'm not messing around here, this is real." Even if it doesn't legally enforce anything. Does that makes sense?
Melissa: While we're on the subject of chosen family, I just want to also mention something that comes up sometimes. We've talked a lot about ways to make people family, but one of the other questions I get sometimes, is there any way to make somebody not family?
Jase: Right. That's-
Emily: Interesting.
Melissa: Unfortunately, there is a way it is an unfortunate way and that is adult adoption.
Jase: Okay.
Emily: What?
Dedeker: Let me try to guess what you're implying here. As in, let's say, I have a huge falling out with my mother, my mother who doesn't accept my relationship, sexuality, gender identity, whatever it is, do not want this person as my mother, I could have a friend of Emily, adopt me as an adult and then legally she's my mom? She's the mommy.
Melissa: Then all of her people are your people and you're not related to most of the people in your family anymore.
Dedeker: Wow.
Jase: Now, okay, that's a thing that you can do as an adult, that then doesn't need that sign off from your parent to give you up. You're able to sever that tie for them through that adult adoption?
Melissa: Yes.
Jase: That's really good to know.
Jase: Yes, it's a good tool.
Melissa: It's an extreme remedy and it's difficult finding somebody you want to be your parent.
Jase: I've seen people do it. I've been with friends who have done it for various reasons.
Melissa: If you're in that situation, where you have somebody you're related to that you really need to not be related to. I really love advocating for chosen family, just as a political option for polyamorous people, in general and just in general, because it's really weird when you think about it, given how much we value freedom and self-determination, that of all of the things you get to pick, you do not get to choose who is family to you and that is very weird and something that makes me uncomfortable on a regular basis.
Jase: That makes a lot of sense. It's one of those fundamental unquestioned things about our culture. The conversation is changing. I think as more and more people become aware of even chosen families as a concept, even separated from the legal side of things, that definitely helps.
As we're coming to the end here, a couple listener questions about just the logistics of even finding a lawyer, what to expect there. I want to start it out with the broad question of like, "Okay, so I've listened to this episode, this is great information, this makes a lot of sense. Why can't I just, on a sheet of loose-leaf paper, write out, this is what I want to have when I die. This is my power of attorney. Here's my signature, here's the date, done. Why can't I just do that?
Melissa: Okay. It depends on the state. In Washington State, writing your own will in your own handwriting, which is called a holographic will, is not considered sufficient.
Jase: It sounds cool though.
Jase: What if I printed my will as a hologram?
Jase: What if it was a holographic sticker?
Melissa: The thing that makes wills magic is that they have to be witnessed by two people who testify that you were in your right mind and they actually saw you apply ink to paper. It is very like--
Emily: Oh, wow.
Melissa: It's called a will signing ceremony for a reason.
Emily: Ceremony.
Jase: I had to grab two strangers in a UPS.
Emily: Really. You're like, "Watch me do this." That's amazing. Oh my gosh.
Jase: I'm just imagining you there with like a feather pen and an ink pot, and you're like, "Just hold on a moment. This will only take a few hours."
Melissa: I am not going to discourage people from doing the best that they can with the resources they have. If we had unlimited money in a world like that, I would want everyone to have a lawyer. Hell, I want everyone to have a lawyer that's why I have the practice that I do. We're an unaffordable luxury to people and I have my own feelings about that and the choices we've made as a profession that make that true, but it is what it is.
However, there are usually forms available, especially for durable power of attorney, that living will, that are better and when it comes down to it, you can't undo it if it's wrong. Even having a legally enforceable power of attorney, durable power of attorney for medical care, your ability to get the hospital to do what you want, often depends on whether or not you have a lawyer who can show up to the hospital attorney's office and be like, "Look, I'm going to go file a restraining order unless you do."
Jase: Oh, wow. Okay.
Melissa: Because fundamentally, as with everything, what you want to have happen and what you can make happen, are two different groups of things. When you have legally correct documents, you have the ability to make things happen. If you have things that are just written down and you have people who love you and care about you and they are the people that the state thinks should have the control, things can still work out. I'm not going to tell you you're doomed if there's not an attorney helping you with this, but it all depends on everybody getting along and everything going just right, and that person surviving you and working really hard to work around the fact that they don't have an actual will that is enforceable.
You're making things harder on the person who's in a tough position, if you don't have legally enforceable documents. Having even basic legally enforceable documents, means that the people who you're, perhaps, counting on to stand up to your blood relatives, have a much stronger position and the ability to help you.
Jase: That makes sense. That's pretty compelling. It's easier to have a lawyer shoving some legal print in someone's face, than just your binder paper shoving somebody's face.
I'm going to read this question verbatim because I loved it and thought it was so funny. So someone in a discord said, "I've never really needed an attorney, but how does one go about starting? Like if it's high time I do a will, do I just walk in and go one will please." I think that applies to a lot of these things. If I want to a cohabitation agreement, I want to start thinking about a third parent adoption, where do you even begin?
Melissa: It's tough. Our user interface as a profession is terrible.
Dedeker: I think I agree.
Jase: I agree.
Melissa: We don't like if the medical profession decided to get rid of all family practice and doctors and you just had to show up at the right specialist office. If you want a will, you want a trust in a state's attorney most of the time. They generally will do a package deal. You can get a simple will for a flat fee upfront. That usually includes other planning documents, like HIPAA waiver is like medical power of attorney, like an economic power of attorney, which can be really important if you have an incapacitated business partner or domestic partner, whose accounts you need to get into.
Emily: Interesting.
Melissa: There's just some tactics there. If you want a cohabitation agreement, you probably need a family law attorney or maybe even a real estate attorney. It depends on the particular state you're in and the skills of the people involved. If you want a third parent adoption, there's three people I know of who can do-
Jase: Even extra special within a special team?
Emily: Wow.
Melissa: Yes. The best way to find an attorney is to ask an attorney. They might not know, but usually, we're a little like mushrooms. You see the individual attorneys with our little heads up above the ground, but we have networks underneath because none of us is good at everything.
Jase: That's how it worked for us trying to do our cohabitation agreement, not being married and things like that, and not having intentions to. Having to follow this chain of this person recommended this person and they said, "Oh well, maybe this other person," exactly.
Melissa: I think people are sometimes shocked at how limited our expertise really is. I am sorry that the user interface sucks, it just does.
Emily: Melissa, this has been really excellent. We're going to continue the conversation in our bonus episode, but for everyone else, we just want to know where listeners can find more of you in your work and also please, plug your own law firm as well, if you would like.
Melissa: My law firm is Smoll Law, that's smol-law.com. I'm available there. I offer ongoing legal representation for these kinds of small questions. I'm available on Patreon as well. Representation for your family costs $50 a month. I am on Twitter, my personal account is CasualLaw and my professional account is SmollLaw there. Most other places I go by Vrimj, which is V-R-I-M-J. Feel free to contact me and ask me random questions or ask me for referrals in your state.
Jase: Let me just say to our listeners, I can highly, highly recommend Melissa. Something I've really appreciated over the past three years is that it does feel like I've suddenly got that cousin who is the lawyer, who I can just shoot an email to, instead of it being like, "Okay, well, we've got to book you at a 15-minute appointment and that'll be several hundred and hundreds and hundreds of dollars and then the appointment's going to be six weeks out and you've got to wait for that." That's something I really appreciate about that. You make it very easy and very accessible and you've helped us with so, so, so many things over the years.
Melissa: Thank you.