Basic estate and long-term planning a must for LGBT seniors
Published: May 21, 2012
Virginia does not recognize same-sex marriages or domestic partnerships, and also does not recognize the validity of same-sex marriages or domestic partnerships entered into in other states. As a result, the lesbian, gay, bisexual, and transgender (LGBT) population of Virginia has a critical need for estate and long-term care planning.
Without the proper planning, as health deteriorates with age, estranged family members may end up with decision making authority over an LGBT senior’s financial, health and final arrangements, in lieu of a life partner or a trusted friend. Without a will, relatives of an LGBT senior may inherit property that was intended to sustain a life partner during their golden years.
Even without the proper planning, heterosexual couples have protections built into our statutes. Marriage brings rights to inherit property if the decedent dies without a will. Marriage brings statutory decision making authority over a spouse’s health care. Marriage confers rights to receive notice of pending proceedings under our state’s guardianship and conservatorship statutes. Spouses may make funeral arrangements as “next of kin” of the decedent. Spouses have protection from their spouse’s creditors as to property that they own as tenants by the entirety. Finally, spouses are protected from impoverishment if their spouse needs Medicaid to pay for long-term care.
LGBT couples (as well as unmarried heterosexual couples) lack these statutory rights. There are no inheritance rights, no health care decision making authority, no requirement that the partner be notified of a hearing to declare their partner to be incapacitated, no authority to make funeral arrangements, and no safe harbor under Medicaid’s transfer regulations. LGBT seniors can, however, put documents in place to establish these rights. LGBT seniors must act affirmatively to put these documents in place before the onset of illness, incapacity or death, in order to avoid the risk of having their partners left out of the most sensitive decision making.
As we age, the odds increase that we will lose our ability to give informed consent, and that health care professionals will need to look to a surrogate for health care decision-making authority. Not infrequently, LGBT persons (and their partners) have troubled relationships with their families, which may be due in part to family members’ disapproval of the LGBT person’s sexual or gender orientation. In the event that the LGBT patient cannot give informed consent, an advance medical directive dictates that the LGBT’s partner or trusted friend makes sensitive health care decisions, not a hostile, estranged, or distant family member. In the absence of an advance medical directive, and if there is no court-appointed guardian, it is generally the immediate family who will make decisions regarding an LGBT senior’s heath care.
Advance medical directives frequently contain a “living will” (or “natural death declaration”) stating the person’s preferences regarding life support in the event of terminal illness or a persistent vegetative state. If one of these end-of-life situations presents itself, a “living will” reassures the agent named in the advance medical directive that they are making the decision that their loved one would want, and assures the family that the agent is acting in accordance with the patient’s wishes.
Another critical document for LGBT seniors is a designation of a person to make final arrangements. In the absence of such a designation, the decedent’s “next of kin” are the only people authorized to make funeral and burial arrangements. “Next of kin” is defined in our statutes as spouses and blood relatives. A life partner has absolutely no legal authority to provide burial instructions. If there is disagreement about what arrangements should be made, any of the “next of kin” may petition the court to determine who should have decision making authority; a partner would not likely have standing to bring such a suit. It is not enough for an LGBT senior to discuss their wishes regarding their final arrangements with their partner, friends and family. These wishes might not be honored, or worse may be disregarded. In the absence of a written designation of an agent to make final arrangements, partners are legally shut out of the decision making, and must depend on the family to include them in the plans.
A durable power of attorney is a third critical document for LGBT seniors. Nominating a person to handle some or all of one’s financial affairs in the event of incapacity can obviate the need for a court order appointing a conservator to manage one’s financial affairs. As noted above, there is no requirement that a partner be notified of any such court proceedings, unless the partner is an agent under the person’s written power of attorney or written advance medical directive.
There are no inheritance rights or family allowance rights under Virginia law for partners of LGBT decedents. Thus, it is extremely important for LGBT seniors work with a knowledgeable estate planning attorney to ensure that their assets are properly and efficiently distributed at their death. In the absence of proper planning, a LGBT decedent’s blood relatives could inherit the decedent’s property under Virginia’s intestacy statutes. Virtually all will forms available through self-help kits and web sites presume that all of the beneficiaries are legally related to the decedent, and are therefore less likely to have the proper outcome for a LGBT couple.
Lastly, LGBT seniors must act affirmatively regarding paying for their long-term care. Many seniors turn to Medicaid to afford the cost of a nursing home. Medicaid laws provide some protections against spousal impoverishment, and generally allow spouses to exchange property with each other, but offer no corresponding protections for same-sex partners. Long-term care insurance is especially prudent for LGBT seniors. The assistance of a knowledgeable elder law attorney may enable the LGBT couple to arrange their finances to support each other without running afoul of Medicaid’s gifting restrictions.
- By Ashley Payne, an associate with the firm of White & McCarthy in Midlothian.
Excellent article. Please let us know if you need any legal advice.
Tucker Griffin Barnes P.C.
Charlottesville, VA (434-973-7474)
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