As LGBTQ people, the legal issues we face are the same as everyone else and different from everyone else. LGBTQ seniors are part of the Baby Boomer generation. But, we may not have the classic safety nets other Baby Boomers have: spouse, children and supportive family. However, there are legal options available to us that we can use.
Here is good news: now that same-sex couples can marry, LGBTQ seniors are eligible to draw on our spouse’s social security benefits and may be able to go on our spouse’s medical benefits. Also, our spouse is considered “next of kin” for medical decision making and inheritance (but that doesn’t mean we shouldn’t still be doing our wills and other legal documents!), and can receive retirement benefits or pension.
However, talk with an attorney and tax advisor before getting married because there are some disadvantages in certain situations. For example, in North Carolina we are responsible for our spouse’s medical bills if they are unable to pay them. As we age and have more medical issues, this is an important consideration. Also, marriage can impact a person’s eligibility for some governmental assistance programs, previously received alimony and drawing on a former spouse’s social security, among other things.
Here is more good news: gay and lesbian seniors (and others) who were discharged from the military solely because of their sexual orientation and who were given a less than honorable discharge, can apply to have it upgraded. With the correct discharge status, they are eligible for a host of military benefits, including VA medical benefits, loan assistance, burial benefits and more. For LGBTQ seniors, access to these benefits can make a difference. (Note: it is not clear whether this applies to discharges based on gender identity).
LGBTQ seniors (and frankly, everyone else) can use the law to our benefit by doing a Last Will and Testament or Trust that provides for the people we love and controls how our property is handled at our death, how our pets are taken care of and how our burial, cremation or other final arrangements are handled, among other things. A will is particularly useful for someone who is transgender and wants to state their wishes about the name, pronouns and proper attire to be used at their funeral.
Importantly, doing a will or trust is generally much easier than people think it is.
A Health Care Power of Attorney is also important. In a Health Care Power of Attorney, LGBTQ seniors (and others) choose who we want to make medical decisions for us if we are unable to do so. It can also state what name and pronouns we want the medical provider to use if we are hospitalized. If someone does not have a Health Care Power of Attorney, only the person’s family will be consulted to make medical decisions. Other loved ones, such as a partner and friends, will not be able to make medical decisions.
LGBTQ seniors can also do a MOST Form. MOST stands for Medical Orders for Scope of Treatment and is the actual medical order signed by our doctor to carry out our wishes for specific medical treatment. It is a medical form and is done with our doctor.
Another important document for LGBTQ seniors is a Living Will. In it we say whether we want artificial life support or other extraordinary medical measures if we have certain serious medical conditions. When we do a Living Will, we take control of the decision-making and relieve our loved ones of making that difficult decision. Also, a Living Will is different from a DNR (Do Not Resuscitate). A Living Will covers several medical situations and is a legal document done with an attorney. A DNR is a medical form and is done with the doctor.
A Durable Power of Attorney is another legal document useful for LGBTQ seniors (and others). This document allows us to pick a trusted person to stand in for us to make important decisions if we cannot do it ourselves. It also can help avoid being declared legally incompetent by a court if we are no longer able to make our own decisions. If that happens, the court chooses who our legal guardian will be. Legal guardianship is a good and necessary legal process for someone who needs it, but it is better to avoid it and make our own choices about whom we trust and want to help us if we need it. Please know that a Durable Power of Attorney is a very powerful legal document and should not be done without an attorney. People who do not fully understand the power they are giving in the document can end up having their money and property taken by an unscrupulous person.
As LGBTQ seniors, we have legal options we can take and decisions we can control. The key is to not put it off any longer. We are not getting any younger, are we?