Articles Posted in Elder Law for the Gay Community

One new study found that many LGBTQ+ individuals worry that prejudices held by long-term care facility staff could continue placing these elderly individuals in an environment rife with discrimination and misunderstanding. Many elderly LGBTQ+ individuals even feel the need to go “back into the closet” due to fears about being treated worse by long-term care staff. 

These findings come thanks to a new review that examined 20 recent studies between 2000 to 2019. Each of these studies focused on older individuals as they adapt to long-term care settings. This review also found that long-term care staff is often unfamiliar with the challenges faced by same-sex Americans.

The LGBTQ individuals who are currently transitioning to nursing homes and long-term care facilities are the first “out” generation who lived through the Stonewall Riots and marked the first generation to live openly. This generation also weathered the HIV outbreak along with a great deal of other trauma and discrimination. 

Most people should have a will. Wills are the legal mechanism for distributing property, naming guardians for children and exceptional individuals, and cancelling out debts, among other tasks. Having a will guarantees that you, rather than New York State, decide who gets your property and how your affairs would be wound down after you die.

In this series, we will explore all things that get done after a person dies to ensure that his or her final wishes are carried out in accordance with their will. Many people die without a will. There are laws in those instances too, that govern the distribution of property when individuals die without a will. The legal term for situations like that is intestacy. Someone who leaves a will before they die is legally known as the testator; while someone who dies without leaving a will is legally known as intestate. This series will be discussing testators and the distribution of property pursuant to a will only.

Understanding the language of probate

A recent study by Merrill Lynch and Age Wave found that almost half of Americans over 55, have no idea what will happen to their assets when they die because they don’t have an estate plan or will. People often put off planning their estate because they are not ready to contemplate their morality or to make the difficult decisions about their medical care and treatment in the event of incapacity because of a mental or physical disability. The subject is difficult. However, without an estate plan your family is in for a rough ride.

The study identified stumbling blocks that prevent people from creating a will or engaging in estate planning include:

  • Spouses with children cannot agree on who should be appointed guardian in the event of their death.

Earlier this year New York City welcomed the opening of the nation’s first ever LGBT Senior facility. The SAGE Center (Services and Advocacy for GLBT Elders) is located in Manhattan on 27th Street in North Chelsea. As our New York elder law attorneys noted in a previous post on the center (see here) the facility will provide a range of services for the often-vulnerable members of this community. Many LGBT seniors have an increased need for support at this time because they are less likely to have adult children providing help when they age.

Fortunately, more and more advocates and community members across the county are recognizing the unique needs of this community. As reported by GSFLA News this week, the nation’s first White House LGBT Conference on Aging was held on Monday. The three day conference was opened by U.S. Representative and chairwoman of the Democratic National Committee, Debbie Wasserman-Schultz. In her remarks, Rep. Wasserman-Schultz noted that the long-term care needs of this community always existed, but they previously existed “in the shadows.” She went on to note the important of elder law issues, explained that, like all senior communities, LGBT elders need a wide range of support services down the road.

Other speakers at the event included an administrator at the U.S. Health and Human Services Department and an assistant secretary for policy development and research at the Housing & Urban Development Department. The two spoke on the crucial issues of senior healthcare and housing.

The New York elder law estate planning attorneys at our firm have worked for years with local GLBT residents on the unique issues that they face when planning for their long-term financial, social, and physical well being. Even though New York leveled the playing field this year by passing legislation which allowed same sex couples to marry, these families continue to face complexities in their planning because of inequalities at the federal level. Same sex couples still need to take special steps to ensure that their assets are protected and distributed according to their wishes.

Beyond estate planning needs, senior members of the GBLT community also continue to face unique challenges when planning for their long-term well being. The latest research reported in MetLife’s “Out and Aging Study” found that three out of four GLBT seniors lived alone. In addition, these seniors are much less likely to have children than their heterosexual counterparts. As a result they are often less likely to have relatives able to help care for them as they age. Of course, GLBT seniors encounter the same problems as they as age as the rest of the community, and so these demographic differences mean that they have a particular need to conduct New York elder care planning to ensure necessary resources will be available in their golden years.

Unfortunately, our New York elder law attorneys know that many GLBT seniors fail to properly plan for their long-term healthcare needs. Many elder care advocates recognize the unique vulnerabilities of these seniors and are working to help. In an effort to provide the necessary aid, this weekend local officials announced the opening of the nation’s first GLBT Senior Center. As explained in the New York Examiner, the Services and Advocacy for GLBT Elders Center (SAGE) is expected to open in January in Manhattan. GLBT seniors in all five New York City boroughs will be able to benefit from the facility. As Mayor Bloomberg noted during the announcement, “The needs of seniors have evolved since senior centers were created fifty years ago, and now is the time to re-envision the one-size-fits-all approach that has traditionally shaped many of our centers.”

In January, new legislation initiated by President Obama went into effect whereby hospitals participating in Medicaid and Medicare must now allow all patients to decide visitation rights, as well as whom to entrust with making medical decisions on their behalf, regardless of sexual or gender identity.

To read the bill, click here. While this paves the way for members of the LGBT community to have further control over their own medical decisions, it is important to note that this legislation defers to state laws with regards to giving proxy for advanced medical directives. This makes a power of attorney form for LGBT seniors all the more relevant and necessary.

A power of attorney form designates who will make legal and financial decisions for you should you become physically and/or mentally incapacitated. With a health care proxy and living will you may also spell out an “advanced directive” for medical decision-making, including end-of-life decison making, such as life support. The person who you specify in these legal documents will then be able to inform the medical personnel what your wishes are. While the recent legislation is enormously helpful for providing equal rights in medical care, it will help to ask an experienced New York LGBT elder law attorney whether or not a power of attorney can guard against discrimination at the time of a partner’s greatest need.

Unfortunately current economic hardships may exist more acutely for the LGBT elder community because of a lifetime of federal law discrimination that has affected their financial security and health care options. Of all the so-called financial safety nets, including Social Security and retiree health insurance benefits, the harshest effects on aging LGBT Boomers is Medicaid. To be eligible in New York for state nursing home assistance, certain asset and income level requirements exist whereby qualified applicants must be deemed impoverished.

New York State Medicaid allows the spouse of a person receiving Medicaid – “the community spouse” – to keep certain assets including the family home to protect against total impoverishment. Because marriage rights are not granted to same sex couples in New York, they cannot take advantage of this provision.

On the other side of the coin, the inability of same sex couples to marry in New York offers a distinct Medicaid planning advantage in later years. If you are in a same sex partnership and wish to plan ahead five years to protect your jointly owned home and life savings from nursing home costs, and cannot obtain long-term care insurance for any reason, you may both establish a Medicaid Asset Protection Trust for one other. Legally married couples may not name each other as the trustee in a MAPT. Same sex partners, however, are able to name one another as each other’s trustee and therefore do not have to go outside of the relationship to put someone else in charge in order to protect assets. A New York elder law attorney who has familiarity with the underserved legal needs of the LGBT community can best advise whether or not a MAPT is a viable financial solution in a given situation.

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