The Legal Documents Every LGBT Older Adult Needs
What you need to put in writing to protect your financial, health care and end-of-life decisions.
LGBT people often rely on caregivers who are not legally recognized, such as partners and families of choice. Because of this, these caregivers can be excluded from decision-making on a loved one’s medical care and end-of-life plans, unless there are specific legal arrangements in place.
Everyone should have legal documents to ensure that their end-of-life wishes are followed. If you become incapacitated or die without certain documents in place, state law gives decision-making authority and any inheritance to the “next-of-kin”—either a legally recognized spouse or blood relative. This could result in surviving LGBT partners or other loved ones being unable to carry out funeral and burial wishes, being shut out of an inheritance, forfeiture of a family home, and other dire consequences.
Here is an overview of the legal documents you need to ensure that your financial, legal and medical wishes are respected. Please note that state laws vary widely, so it is best to consult an attorney when putting together these documents. Visit findlegalhelp.org, a tool of the American Bar Association, to start your search for an attorney in your state.
A set of legal documents that explicitly describes your wishes for care, such as medical power of attorney/health care proxy, living will, funeral directive and hospital visitation directive. These documents are defined further in this article.
States how you want your assets (for example, personal possessions, money and real estate) to be distributed after your death. Although not recommended, most attorneys would agree that it is better to have even a personally written will rather than none at all. If you write your own will, you should have a lawyer review it. This article from the New York Times’ Bucks blog reviews will-writing programs and online attorney review options.
Medical Power of Attorney/Health Care Proxy
Also called a “durable power of attorney,” this document allows you to appoint an individual of your choice (the “agent”) who will be legally empowered to make medical decisions for you if you become unable to do so. Visit the American Bar Association (ABA) for more information.
Allows you to specify what types of life-sustaining measures should be taken in the event you are unable to express those wishes yourself. The ABA site provides more information on living wills as well as a tool to create your living will online.
Financial Power of Attorney
Allows you (the “principal”) to appoint someone (the “agent” or “attorney-in-fact”) to make financial decisions for you (including paying your bills) should you become unable to do so.
Be sure to specify on policies—such as life insurance or retirement plans—exactly who you wish to receive your benefits. Although such policies are considered part of the “estate” for tax purposes, these designations are not made in the will.
Real Estate Ownership
There may be certain legal ownership agreements (such as joint tenancy) that you can make to help ensure your property is transferred properly upon your death. You must consult with a real estate lawyer to be sure that your ownership agreements are in line with your wishes.
Allows you to be explicit about your preferred funeral arrangements and disposition of your remains, including giving a designated person decision-making authority for those particular preferences. For more information, see the Lambda Legal publication “Tools for Protecting Your Wishes for Your Funeral.”
Hospital Visitation Directive
A document that allows you to designate who can (and cannot) visit you in the hospital. Sometimes this directive is incorporated into the Medical Power of Attorney/Health Care Proxy, but even with that, it is best to prepare an additional, separate directive.
Please note that in April 2010, President Obama passed a mandate to extend visitation and medical decision-making rights to LGBT partners and families of choice. This mandate applies to all medical facilities that receive Medicaid or Medicare funding (which covers the vast majority of medical facilities in the country). You must still complete a hospital visitation directive, which the hospital must then follow. For more information on the mandate, read the “Presidental Memorandum – Hospital Visitation.”
More Legal Resources:
ACLU’s LGBT Project
Fights discrimination and moves public opinion through the courts, legislatures and public education in the areas of relationships, youth and schools, parenting, gender identity and expression, employment, housing and more.
A for-profit site that helps users find attorneys in their city, county, state or metropolitan area.
Gay and Lesbian Advocates and Defenders
New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression.
A national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.
Helps low and moderate income people find free legal aid programs in their communities, and answers to questions about their legal rights.
A for-profit resource for LGBT people that provides online legal document preparation and access to lawyers.
National Center for Lesbian Rights
A national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual and transgender people and their families through litigation, public policy advocacy, and public education.
Sylvia Rivera Law Project
Works to guarantee that all people are free to self-determine their gender identity and expression, regardless of income or race, and without facing harassment, discrimination, or violence.
Transgender Law Center
Connects transgender people and their families to technically sound and culturally competent legal services, increases acceptance and enforcement of laws and policies that support California's transgender communities, and works to change laws and systems that fail to incorporate the needs and experiences of transgender people.
Transgender Legal Defense and Education Fund
Works to end discrimination based upon gender identity and expression and to achieve equality for transgender people through public education, test-case litigation, direct legal services, community organizing and public policy efforts.
U.S. Living Will Registry
A for-profit website that allows you to store your living will and health care proxy so that health care providers can access it if you become incapacitated.