Vogel & Dubois

550 Forest Avenue Suite 205
P.O. Box 3649
Portland, ME 04104
Phone: 207-761-7796
Fax: 207-761-6946

Timothy M. Vogel, Esq.
Matthew R. Dubois, Esq.
Elder Law Q&A
creating lifetime answers for older persons and their families

Answers for Gay and Lesbian Elders

A whole generation of gays and lesbians who have worked to be accepted are now approaching retirement age. They insist that their legal plans not only provide for loved ones, but celebrate and affirm gay and lesbian family ties and associations.

By M. Dubois

written for the Maine Lawyers Review

I must begin with a heartfelt thank you to Timothy M. Vogel and the Maine Lawyers Review for the chance to address this important elder law issue. By working proactively and openly with our clients we can help enrich their lives and eliminate the loneliness and depression that gay and lesbian elders often face.

The days of ignoring different sexual orientations or gender identities of elders has ended. A whole generation of gays and lesbians who have worked to be accepted are now approaching retirement age. They insist that their legal plans not only provide for loved ones, but celebrate and affirm gay and lesbian family ties and associations.

Combine the rigors of growing old in America with being gay or lesbian and you create a unique challenge. The task for the attorney who is creating answers for older gay and lesbian clients will be to order the elder's affairs to effectuate their finance, retirement, health care, long-term care and estate goals while maintaining the client's ties and loyalties to chosen family and community.

Statutory protections, regulatory policy, and both public and private assistance programs for the elderly are geared toward traditional models of family and either assume heterosexuality or are sexual orientation neutral. Gay and lesbian elders require an advocate who knows, and can convey, the importance of advance legal planning in their lives.

The best advocate for a gay or lesbian elder is an attorney. Accountants, investment advisors, care managers, physicians, and social service professionals are important partners in planning for elder gay and lesbian clients. However, the wide discrepancy in federal, state and local laws affecting gays and lesbians necessarily place the attorney in the role of plan manager.

Addressing Homophobia

Gays and lesbians continue to self identify as such into their senior years. Whether they will be open about their sexual orientation is the question which will weigh on their mind. Being open about being gay in their senior years may affect housing options, health care, and independence among other things. In order to feel comfortable about continuing to be open about who they are, they must feel they have recourse against homophobia and discrimination they experience from landlords, care providers, and hostile biological family.

Gay and lesbian elders may have problems with inadequate care in a nursing or medical context due to homophobia and discrimination. This may include verbal, physical, or psychological abuse and harassment. They may experience harassment based upon real or perceived HIV status. Make sure your client or their Durable Power of Attorney agent understands that this type of treatment is not acceptable, should be reported, and that you can assist them with traditional remedies in Maine law if appropriate.

Incapacity Planning

Planning ahead for their elder years is of vital importance for your gay and lesbian clients. They should think about issues such as incapacity and estate planning well ahead of when a traditional client might be pondering these issues. It is essential that gay and lesbian elders choose an agent to assist them in the event of their incapacity. Maine law regarding incapacitated persons and persons under disability places biological family ahead of actual or chosen family when appointment of a guardian or conservator is needed. It is possible to remedy this situation by nominating in writing, usually a Durable Financial Power of Attorney or a Power of Attorney for Health Care, the individual to serve as Guardian or Conservator if one becomes necessary. 18-A MRSA fi5-311(b) and fi5-410(a).

When advising a gay or lesbian client regarding choosing an agent, be aware that biological family may not be their first choice; provide strong Durable Power of Attorney language to ensure that the agent will be respected despite lack of biological ties. Consider that though an agent under a Health Care Power of Attorney may have access to the principal and their records, that the decisions the agent has authority to make may be limited to the express language of the document. The right to make decisions regarding priority of visitation is an example of a right taken for granted, often not included in Powers of Attorney, and which, without express authority, may be denied to a non-related agent in favor of the wishes of biological family.

Non-traditional couples will have concerns about being able to have access to each other in medical or nursing care facilities. There are no laws in Maine providing this right to unrelated parties. Durable Powers of Attorney should indicate the importance that your gay or lesbian elder client places in their agent; state the relationship of life partners clearly. If they wish their agent to be treated as though they were a married spouse, though they are not able to marry in Maine, state this express wish at the beginning of the document.

Sex-phobia is an apt description of the mores surrounding treatment of the elderly. Gay and lesbian clients will experience homophobia in the nursing home environment. A presumption of heterosexuality will be common at any long-term care facility in Maine. Talk with your client, their life-partner, agent, children, or family about the importance of discussing being gay with prospective long-term care providers or facilities.

A significant difficulty for gay and lesbian elders comes in the funding of their long-term care costs. State and Federal assistance programs including Social Security, Medicare, and Medicaid (now MaineCare in Maine) provide express protections for spouses based upon marriage and for dependents based upon biological ties. As marriage (or civil union), and second parent adoption are not currently available in Maine, gay and lesbian clients will need to address the risks to their life-partner or their life partner's children in the event they require expensive long-term care.

Family finances may be significantly drained by a long illness and protections including Social Security disability, Medicaid spousal allowances, and private insurance may be inaccessible for the family of the gay or lesbian elder. Appropriate investment, annuity, or insurance options must be part of a legal plan for a gay and lesbian elder. A long-term care insurance policy, designed with appropriate benefits and coverage, may be a sound approach for gay and lesbian elders. It is important to work with a long-term care insurance professional who understands the needs of gay and lesbian elders, as well as the complexities of long-term care insurance.

Community and Housing

Choices regarding retirement and independent living housing options are important for your elder client. Federal law regarding non-discrimination in subsidized housing does not include sexual orientation or gender identity. There are many municipalities in Maine which have non-discrimination laws that include sexual orientation and the number is increasing. At the least, you should be able to advise your client regarding appropriate housing choices in these communities.

One of the driving forces behind gay and lesbian advocacy efforts is the need for community. Gay and lesbian elders have this basic need, as do we all. You can assist your clients by urging them to discuss being gay with housing providers and care facilities prior to admission. However, there are several gay senior housing efforts around the country, some close by, and some which are already in full operation. Your clients may want to investigate this possibility and the providers of retirement and assisted living housing in Maine should be encouraged to address this need.

Unmarried Couples

Most law articles on the issue of gay and lesbian legal planning center on the needs of 'non-traditional couples'. I'm just as guilty of making this generalization (see Legal Planning for Gay, Lesbian, and Non-Traditional Elders, 63 Albany Law Review 263, 1999). It is true that all couples, gay or straight, who are not married have similar concerns regarding agency, health care, financial and disability plans, and their estates.

However, gay and lesbian couples are unable to marry in Maine or any other state. The inability to marry differentiates the approach which should be taken when developing legal plans for retirement and the senior years. For opposite sex couples who choose not to marry, the option of marriage exists as an emergency measure in most situations. An example would be a nursing home wedding to qualify an opposite sex life-partner living at home (the couple's private residence) for MaineCare spousal protections.

An understanding of what benefits gay and lesbian elder couples do not have is essential to tailoring legal solutions in order to provide alternatives. To start, under private medical and health insurance, they may not have access to benefits unless the policy specifically provides for 'domestic partners' and their children. Domestic partner coverage is available in Maine and is paid for, in whole or in part, as an employee benefit by some employers in Maine. However it remains the exception; most of your clients will not have this coverage.

If your clients do have this coverage, consider that domestic partner health insurance coverage may be dependent on a written statement by the insured about their status as domestic partners. It may be available only to same sex couples or to both opposite and same sex couples. It may require registration as a domestic partner under a municipal domestic partner ordinance or registry (Portland has such a registry). For your gay or lesbian elder client it will be important to discuss the post retirement need and availability of private insurance for them and their family.

Under Social Security law and regulation, gay and lesbian couples do not have access to survivor benefits or spousal retirement benefits. Their children may not have access to survivor or disability benefits in the event the non-biological parent dies. Gay and lesbian couples will need to consider a loss of income if the higher earning partner passes away first. Widows or widowers have access to survivor's benefits and the larger of their own or their spouse's Social Security retirement amount. Alternative income sources from investments and life insurance products must be available for a surviving gay or lesbian partner who needs them. The unavailability of Social Security disability to a non-biological child or dependent life-partner should also be considered with some clients.

Similarly, protections under pension law and income tax law are geared toward married spouses. Gay and lesbian elders must consider that their retirement income and benefits will likely end upon their death, leaving little or nothing for their same-sex partner or non-biological family. The protections of traditional retirement plans must be replaced with personal retirement investments which will provide benefits to whoever the named beneficiary may be. Regulated employer contribution retirement plans such as 401(k) accounts must also be accounted for when planning for a gay or lesbian couple. The tax treatment and required distributions of such plans will be significantly less advantageous for a surviving partner as opposed to a surviving spouse.

In the constantly changing area of MaineCare (Medicaid) law, the only financial protections allowed under federal requirements are for married spouses. Unmarried couples who combine their finances are at risk. It is unlikely this reality will change in the future. In fact, it is likely best to advise all elders to avoid reliance on the availability of Medicaid funds considering the budgetary and political pressures on the program.

Gays or lesbians with a partner facing expensive and/or extended long term care must consider the need to separate their finances well in advance of the Medicaid 'look back' period (under MaineCare currently three years) or risk exposing the assets of the partner living in the community to long term care expenses. The appropriateness of jointly held property and assets between gay and lesbian elder clients must be considered when discussing how to finance possible long-term care costs. Long term care insurance may be a good investment for gay and lesbian couples who are planning far enough in advance, particularly if they have unequal income or worth.

Estate Planning

The need for estate planning for your gay and lesbian clients cannot be stressed enough. The Uniform Probate Code and Maine probate law provide for intestate succession and family protections based upon biological ties. 18-A MRSA fi2-201 through fi2-405.

ALL gays and lesbians need a Will to provide for succession which reflects their chosen as well as biological family ties. As in their Durable Powers of Attorney, gays and lesbians should state at the beginning of a Will their chosen familial relationships and the importance they place on them. The default model of the family will always be the biological model unless the client's documents expressly state otherwise; for example, that a life partner is to be treated as if they were a married spouse for purposes of succession. Advise your clients not to wait until after their death to 'come out' to biological family in their Will. A lack of openly shown support for a partner will only increase the chances of a challenge. Giving a power of appointment over the residuary estate to the surviving life-partner can help to show support and their importance to the decedent.

Joint ownership of assets is a common desire among same-sex couples. Owning property jointly is a public statement of your commitment and trust. However, the gift tax consequences of adding a partner to a real estate deed without consideration between the partners, or unequal payment of a down payment or mortgage obligation can have gift tax consequences.

There will be no unlimited marital exemption for lifetime gifts between spouses for gay and lesbian clients. This will complicate the process of 'evening out' assets between the life-partners to take full advantage of both gift and estate tax exemptions. Large transfers of assets between same-sex partners above the annual exemption amount will also create reportable taxable gifts.

Gay and lesbian couples with taxable estates will have difficulty in providing for liquidity to pay estate taxes when their estates are illiquid. There is no standard 'second to die insurance' product when the couple is not married. Gay and lesbian couples who fail to do adequate estate planning may have difficulty in paying their deceased partner's tax obligations. The sympathy of the Service where they are not a legal spouse is doubtful. Irrevocable life insurance trusts, charitable trusts and survivor's insurance may be necessary if a taxable estate for either life partner is a concern. Mirror revocable living trusts may be advisable when concerned with privacy or hostile biological family.

Gay and lesbian elders deserve to have their retirement, family, and estate wishes respected and effectuated. The challenge of representing gay and lesbian clients and developing and maintaining effective planning is quite rewarding.

Vogel & Dubois
Helping Your Family in Maine When You're Not There

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