Fact Sheet - Legal Issues for LGBT Caregivers

By Helene V. Wenzel, Family Caregiver Alliance

For Lesbian, Gay, Bisexual, Transgender (LGBT) persons of any age-and especially for older adults-certain legal and financial issues become increasingly important. These determine who has the responsibility to provide care, the power to make medical decisions, and the legal authority to utilize financial resources on someone's behalf if he or she is incapacitated. As a caregiver to a partner, friend or family member, it is essential to discuss with the care recipient what legal protections are available and become familiar with the limitations of these protections.

Since most states do not recognize LGBT committed relationships, referred to here as same-sex relationships or domestic partnerships, LGBT couples need to complete certain legal documents prior to incapacity.

Some members of the LGBT community rely on their "family of choice," a group of trusted and valued friends who provide care and support during an illness. However, without legal protections in place, these relationships might not be legally recognized, and could easily be questioned or contested by a biological family member. It is imperative that LGBT caregivers and care recipients understand relevant local, state and federal laws and act to se-cure legal protections.

Q: What is the status of Domestic Partnerships?

A number of states have enacted laws granting legal rights to same-sex couples, defining these relation-ships as marriages, civil unions, domestic partner-ships or reciprocal beneficiaries. These states currently include California, Connecticut, Hawaii, Maine, Massachusetts, New Jersey, Vermont and Washington, D.C.

The extent of the laws and protections varies. In particular states, some of these rights make it easier for caregivers to assist or act on behalf of an ill partner. Currently, other states are working to legislatively ensure that some or all of the rights and protections of marriage within that state are not available in same-sex relationships. Due to ongoing debate on this issue at the state and federal levels, if you are a caregiver in a same-sex relationship, you should determine what laws exist regarding domestic partnership in your state.

The particular rights which may be afforded registered domestic partners (such as hospital visitation, making decisions for an incapacitated partner, inheritance, and income and asset considerations) might play a role in determining if you and your partner choose to register or marry. For information on the status of domestic partnership laws in your state, visit www.nclrights.org, www.lambdalegal.org or www.hrc.org.

California's Domestic Partnership law (AB205) went into effect on January 1, 2005, and includes almost every California law, regulation, court rule or court decision that confers rights or responsibilities on married spouses. Individuals eligible to register as domestic partners can be either members of the same sex or persons of the opposite sex if one or both of the persons is over the age of 62. The discussion below of AB205 highlights the rights and protections of interest to individuals caring for a partner.

Under the California law, if you are a registered domestic partner you are automatically entitled to visit your partner in the hospital and to make medical, legal, and financial decisions if your partner is incapacitated. If your partner passes away, you are entitled to make decisions about your partner's remains. Registered domestic partners are included in the definition of persons who are qualified to secure housing in specially designed accessible housing for seniors.

With regard to public assistance and federal benefits, it is likely?although not certain at this time?that registered partners' combined incomes will be taken into account when calculating eligibility for some public assistance benefits, such as Medi-Cal or food stamps, just as spousal income is. Therefore, it is possible that registering as domestic partners may impact your or your partner's eligibility to receive public assistance benefits in the future, or prompt you to lose benefits either of you currently receive. You should contact the program administrator of the particular benefit program for more information. Currently, registered domestic partners in California must still pay their state taxes as single (rather than married) persons.

California's AB205 does not affect federal benefits (such as Social Security survival benefits), because the federal government does not currently recognize domestic partnerships. Additionally, other states may not recognize any of the legal rights and protections of California's AB205. For this reason you and your partner may want to consider completing certain legal documents (such as the durable power of attorney for finances and advance health care directives) and having copies with you when you travel out of state. For a more detailed description of AB205 (including more about eligibility, terminating a partnership, property, financial assets, debt, parenting and adoption), go to www.nclrights.org or www.lambdalegal.org.

Q: What should an LGBT person or couple do as soon as possible and prior to incapacity?

Consider the following steps (discussed in greater detail below):

  • Create a Basic Estate Plan consisting of a Will or Living Trust, Powers of Attorney (POA) for Property and Financial Management, and Durable Power of Attorney for Healthcare (in California called an Advance Health Care Directive). Be sure to get this done NOW.
  • Review any and all existing estate planning documents: Are they complete? Are they still legally effective? Are they up to date (current state laws, all assets covered, proper beneficiaries named, etc.)?
  • Plan for Old Age, Illness and Disability: Investigate long-term care insurance, (coverage for both at home and nursing home care), and consider disability insurance.
  • Provide for Liquidity: Consider investing in life insurance, in part, to provide sufficient assets for a surviving partner.

Q: What do LGBT persons need to do for estate planning?

For your own protection and for the protection of a loved one, estate planning is an absolute necessity. Timing is also very important. As soon as possible, especially where illness has been identified, or if a person is advancing in age and infirmities, the following documents should be executed: a Will or a Living Trust; Durable Power of Attorney for Finances and Property and for Health Care.

It is also necessary to review deeds to houses and other property and determine if the beneficiaries listed, including those listed on insurance policies, are up to date. If you are domestic partners, creating and executing living-together and property agreements may also be desirable or practical at this time. An attorney working with you will be able to advise you or offer you the proper source of information.

Q: What does a Will provide?

A Will provides that when someone dies, everything owned (the person's estate) goes to the people the deceased wanted to remember (the named beneficiaries of the will) and NOT to anyone else. If there is not a properly executed Will when a person dies, the laws of intestacy in the state in which s/he lives determine who gets everything unless there is a named beneficiary (i.e., on life insurance or an IRA) or if s/he held the property in joint tenancy (i.e., a home or bank account) or in trust (bonds or a bank account).

A same-sex partner or a friend not named as a beneficiary in a Will, or as a joint tenant on a property deed or in trust could find all the property belonging to the deceased going to his or her children, parents, siblings or other family members or even to the state. This result is easily avoided with a properly written Will.

Q: What if there are minor children?

If an LGBT person has a minor child who has not been adopted by the same sex partner, it is imperative that s/he execute a Will. Wills are the only form of testamentary document in which a guardian for a minor child may be nominated, where a testator may leave instructions about the child's education, place of residence, and what can be done in the event of a child's illness. The guardian will still have to be appointed by court order.

Q: What is a Revocable Trust?

Another type of legal document that LGBT persons receiving and giving care may want to consider is a trust. Like a Will, a trust provides for an orderly distribution to beneficiaries of a person's assets upon death. A trust also has incapacity language in it, which may become effective before death. Should a trustor become unable for whatever reason or however long to properly manage his/her estate, a named successor trustee may step in and exercise those powers enumerated in the trust. It is a good idea to ask an attorney to compare trusts and wills to help you decide the most effective document for carrying out your wishes.

Q: What is a Durable Power of Attorney for Property/Finances?

A Durable Power of Attorney for Property/Finances will ensure that if a person becomes legally incapacitated, the designated agent will be able to manage all property and financial affairs. For LGBT care receivers and caregivers the Durable Power of Attorney for Property/Finances is a very powerful document. Without this documentation, an LGBT partner or friend will find it is very difficult if not impossible to take care of important legal and financial transactions when a loved one is incapacitated.

Q: What is an Advance Health Care Directive or Durable Power of Attorney for Health Care?

An Advance Health Care Directive (in California) or a Durable Power of Attorney for Health Care (so named in most other states) ensures that all health care needs and desires are carried out and monitored by a trusted person?the agent or attorney in fact?when the principal can no longer make those decisions or communicate them to health care providers. This document contains the instructions regarding a care recipient's wishes and desires for health care, including what treatment is not desired, such as a Do Not Resuscitate/DNR order.

Q: What other planning issues are important for LGBT persons?

Long Term Care/Skilled Nursing Facility and Medicaid: Neither Medicare nor regular health insurance pays for ongoing custodial care provided in a skilled nursing facility or nursing home. Care must be paid privately from a person's assets, through private long-term care insurance policies or by Medicaid (Medi-Cal in California). There are two major areas of concern caregivers should be aware of:

  • Medicaid eligibility regulations.
  • Regulations controlling the recovery of monies paid out by Medicaid from the estate of the deceased recipient.

Medicaid has very complex rules which vary from state to state. LGBT caregivers should consult with an elderlaw attorney who is sensitive and knowledgeable about Medicaid (Medi-Cal) regulations to deter-mine how best to protect a home, savings and any additional assets and property.

Social Security Benefits: There are no Social Security, SSI (Supplemental Security Income) or Social Security Disability benefits available to LGBT couples after the death of a partner. Currently, Domestic Partnership agreements have changed nothing with regard to Social Security benefits in relation to a surviving partner.

Death and Property Tax Reassessment: Even if a home is properly willed to a survivor or held in joint tenancy, LGBT partners do not have exemption from reassessment of property taxes at death. The IRS presumes that the first person to die owned all of the jointly held property. The survivor has the task of presenting years of receipts and tax returns showing the property was jointly owned. What can be even more damaging is that the passage of property from a joint tenancy to a sole owner is considered a change of ownership and triggers a property tax reassessment that could result in taxes beyond the survivor's ability to pay. It may be advisable to think seriously about investing in life insurance that could provide liquidity and assets to pay for increased property tax.

Q: How do I find an elderlaw attorney who is LGBT sensitive?

First, ask friends about someone they've worked with. LGBT groups or organizations in your area (especially LGBT senior organizations) may be able to provide referrals. Another way to get referrals for an elderlaw attorney is by contacting an estate planning attorney whom you know or have been referred to. Also check the elderlaw resources provided in this document.

Recommended Readings

California's New Domestic Partnership Law: Is Registration Under AB205 Right for You?
www.samesexlaw.com/html/dompartreg_options.html

The New Domestic Partnership Law (AB205): What It Means for You and Your Family, 2005, Legal Staff, National Center for Lesbian Rights.
www.nclrights.org

Questions and Answers About AB205 and Parentage, 2004, Legal Staff, National Center for Lesbian Rights.
www.nclrights.org

Legal Affairs: Essential Advice for Same Sex Couples, Fred Hertz, 2002, Henry Holt and Company, 115 West 18th St., New York, NY 10011.
www.samesexlaw.com

Marriage Equality Fact Sheet, 2005, Legal Staff, National Center for Lesbian Rights.
www.nclrights.org

Four Steps to Financial Security for Lesbian and Gay Couples, Harold Lustig, 1999. The Ballantine Publishing Group, 1540 Broadway, New York, NY 10036.
www.randomhouse.com

Estate Planning for Baby Boomers and Retirees: A Comprehensive Guide to Estate Planning, Stewart H. Welch III, 1998, John Wiley & Sons, Inc. US Distribution Center, 1 Wiley Dr., Somerset, NJ 08875-1272.
www.wiley.com/compbooks

A Legal Guide for Lesbian and Gay Couples, Denis Clifford, Frederick Hertz & Hayden Curry, 2005, 13th ed., Nolo Press, 950 Parker St., Berkeley, CA 94710, (800) 728-3555.
www.nolopress.com

The following FCA Fact Sheets are available on the web:

California Advance Health Care Directive

Durable Powers of Attorney and Revocable Living Trusts

Legal Issues in Planning for Incapacity

LGBT Caregiving: Frequently Asked Questions

Resources

Family Caregiver Alliance
180 Montgomery St., Suite 1100
San Francisco, CA 94104
(800) 445-8106, (415) 434-3388
Web Site: www.caregiver.org
E-mail: info@caregiver.org

Family Caregiver Alliance (FCA) seeks to improve the quality of life for caregivers through education, services, research and advocacy.

Through its National Center on Caregiving, FCA offers information on current social, public policy and caregiving issues and provides assistance in the development of public and private programs for caregivers.

For residents of the greater San Francisco Bay Area, FCA provides direct support services for caregivers of those with Alzheimer's disease, stroke, head injury, Parkinson's and other debilitating disorders that strike adults.

National Center for Lesbian Rights (NCLR)
870 Market St., Suite 370
San Francisco, CA 94102
(415) 392-6257
www.nclrights.org
Founded in 1977 and headquartered in San Francisco with offices in Washington, DC and St. Petersburg, FL, NCLR is a national lesbian, feminist, nonprofit law firm. NCLR gains and protects the legal and human rights of lesbians, gay men and bisexual and transgender people across the United States through impact litigation, public policy advocacy, public education and direct legal services.

State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
(415) 538-2000
www.calbar.org
The State Bar has Attorney Referral Services and a Legal Services Section, as well as a Sub-committee on Legal Problems of Aging.

Bay Area Lawyers for Individual Freedom (BALIF)
1800 Market St., Box #47
San Francisco, CA 94102
(415) 865-5620
www.BALIF.org
BALIF is a Minority Bar Association of lesbians, gay men, bisexuals, transgendered persons and their supporters, with over 500 members including judges, lawyers, legal workers and law students. It is a helpful resource for information about laws affecting the greater LGBT community.

Human Rights Campaign (HRC)
1640 Rhode Island Ave., NW
Washington, DC 20036
(800) 777-4723
www.hrc.org
HRC is a national organization that works to advance equality based on sexual orientation and gender expression and identity through advocacy and education.

Lambda Legal Defense and Education Fund
Western Regional Office
3325 Wilshire Blvd., Suite 1300
Los Angeles, CA 90010
(213) 382-7600
www.lambdalegal.org
With headquarters in New York City and regional offices in the Midwest, South, South Central and West, LAMBDA is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender persons and persons living with AIDS through litigation, education and public policy work.

National Academy of Elder Law Attorneys1604 North Country Club Rd.
Tuscon, AZ 85716
(520) 881-4005
www.naela.com
Information on how to choose an elder law attorney and referrals to elder law attorneys.

This fact sheet was written by Helene V. Wenzel, an attorney at law in private practice specializing in estate planning, wills, trusts, probate and conservatorships. She is a member of Bay Area Lawyers for Individual Freedom (BALIF), the National Center for Lesbian Rights (NCLR) and the National Academy of Elder Law Attorneys (NAELA). Prepared by Family Caregiver Alliance with funding by the San Francisco Office on the Aging through the National Family Caregiver Support Program. ? 2002 Family Caregiver Alliance. Revised in 2005 and reviewed by the National Center for Lesbian Rights. All rights reserved. FS-LGBT200506.

©2005 Family Caregiver Alliance/National Center on Caregiving. All rights reserved.

 

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