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Key Legal Issues Faced by Older LGBT Adults
![]() November 2011 | David Godfrey
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![]() ![]() Along with the aging of the baby boom generation, comes the aging of the Stonewall[1] generation. The Stonewall generation represents a huge expansion of the number of in the number of lesbian, gay, bisexual and transgender older adults who are open about their sexual orientation and/or gender identity. While laws, beliefs, and attitudes have changed over the past 40+ years, a recent study of issues for older LGBT adults in long term care found that only 22% of LGBT respondents would feel comfortable revealing their sexual orientation or gender identity in a long term care setting.[2] Progress has been made. President Obama has signed executive orders, issued policy memos and directed government agencies to allow visitation by LGBT partners, honor advance directives and ordered federal agencies to not defend certain sections of the Defense of Marriage Act (DOMA) in pending litigation. Litigation is progressing on federal issues relating to DOMA, but at best the legal answers are inconsistent and in many cases contradictory. Some issues can be overcome by careful legal planning; other issues require expansion and recognition of same-sex marriage. Older LGBT adults face many unique legal issues that can easily challenge their independence and dignity. This article will highlight five key issues.
These same protections are not available to unmarried same-sex couples.[11] LGBT couples in non-marital relationships are treated as single individuals, not as a family. Without careful and timely advance planning the impact can be devastating on working class and middle class LGBT families. In June 2011 the Centers for Medicaid and Medicare Services (CMS) issued a memo to states regarding Medicaid liens, estate recovery and asset rules for same-sex couples. [12] The memo explains that states have the discretion to exempt same-sex spouses and domestic partners from Medicaid liens imposed by some states.[13] The memo explains that the spousal impoverishment rules protecting the transfer of assets for to provide for the needs of a spouse cannot be directly applied because of DOMA. Instead the memo suggests that states could use a little utilized “undue hardship” provision to work around asset protection for a same-sex spouse of domestic partner. The same almost-unused “undue hardship” provision is suggested as a way for states to avoid pursuing estate recovery against domestic partners and same-sex spouses. The memo does the best it can to recommend ways that states can work around the issues created by DOMA for married same-sex couples and registered domestic partners. Medicaid rules vary widely from state to state. Without careful and knowledgeable planning, well in advance of need [14], the burden of nursing home care can be devastating to same-sex couples, to a much greater extent than their heterosexual counterparts.
These are just a few of the many challenges faced by older LGBT adults. To be on an even footing, LGBT adults must be proactive in planning to work around as many of these issues as possible. Policies, laws and societal attitudes are changing, and the avalanche of post-Stonewall baby boomers are likely to be driving forces for change in coming years. The Administration on Aging has responded by funding a National Resource Center on LGBT Aging [20]and encouraging other programs to address the needs of older LGBT adults[21]. DAVID GODFREY is a senior attorney at the ABA Commission on Law and Aging in Washington DC.. He is responsible for the ABA’s role in the Administration on Aging funded National Legal Resource Center. Prior to joining the Commission he was responsible for elder law programming at Access to Justice Foundation in Kentucky. Mr. Godfrey earned his B.A. with honors at Rollins College in Winter Park, Florida, and his J.D. cum laude from the University Of Louisville School Of Law in Kentucky.
[1] The police raids at the Stonewall Inn in 1969 and subsequent uprising is felt by many to be the nexus of the LGBT civil rights movement in the United States (See generally Wikipedia.) [2] SAGE et al, LGBT Older Adults in Long-Term Care Facilities [3] Older Gay couples are only slightly more likely to live in poverty then older heterosexual couples. LGBT Older Adults Facts at a Glance, September 2010, www.lgbtmap.org [4] 1 U.S.C. § 7 and 28 U.S.C. § 1738C [5] AARP Bulletin Poll “Getting Ready to Go”, AARP Knowledge Management, January 2008. [6] ABA chart of default surrogate statutes. [7] Arizona, California, District of Columbia, Maryland, New Jersey, New Mexico, and Washington [9] 1988 Medicare Catastrophic Coverage Act [10] Medicaid Spousal Impoverishment Figures for 2009 Released [11] How the spousal impoverishment rules apply to valid same-sex marriages is subject to ongoing litigation, public policy reforms and subject to challenges under DOMA. [12] https://www.cms.gov/smdl/downloads/SMD11-006.pdf [13] The liens encumber property that may be subject to estate recovery at the death of the Medicaid beneficiary. Estate recovery requires the estate of a deceased Medicaid beneficiary to repay the state for Medicaid services received during the beneficiaries’ lifetime. [14] All transfers within five years are counted. [15] 80% of adults want to avoid nursing home care according to “These Four Walls”, AARP (2003). [16] Attitudes of Seniors and Baby Boomers Aging in Place, Clarity (2007). [17] LGBT Older Adults in Long Term Care Facilities, Stories from the field, page 6, NSCLC et al, (2011) [18] Id at 8 [19] Id at 8 [20] http://lgbtagingcenter.org/
© 2011-2021 Services and Advocacy for GLBT Elders. All rights reserved. For permission to reprint these articles, or post them online, please e-mail us. |
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