Legal planning for gay, lesbian, and non-traditional elders.

Author:Dubois, Matthew R.

    As we age, our concerns, desires, and outlooks change in a profound way. We may begin to consider our mortality. We may also begin to question the necessity or the adequacy of financial and legal planning. Are my finances sufficient? What does retirement mean for me? Where will I live as age begins to take its toll? How will my medical care be structured? Do I have sufficient insurance? Whom do I trust to make decisions for me if I become incapacitated? Is my estate plan appropriate and will it work as planned? How will the people I care for assist me? How can I plan to assist the people I care for during my incapacity or after my death?(1) More and more elders are seeking the assistance of attorneys in answering these and many other difficult questions.(2) As a result, the number of attorneys who advise and assist these elders, through the development and retention of a legal plan designed to address these questions and related problems of aging, is growing.(3)

    The role of the elder planning attorney in answering these questions is a difficult one. In addition to traditional representation, she must utilize available legal tools to address future events and anticipate changes in the law; she must act as or hire professionals to act as social worker, family referee, financier, accountant, tax consultant, and so on.(4) Every planning attorney has an underlying fear that her client failed to disclose some important fact, circumstance, or assumption which bears on her considerations. How does one approach unusual facts or circumstances? How does the elder planning attorney balance a client's confidential personal and family life with the need to use an outside non-legal network of professionals who assist the elderly?(5) What if the fact in question is the client's homosexuality or other non-traditional way of living? When representing elders, an attorney's difficulty with these issues is compounded by the knowledge that the plans must operate over an indefinite period of time, and survive changes in circumstance and changes in the law.(6)

    Clients seeking elder legal planning that will profoundly affect their life, rights, responsibilities, and estate, also have an underlying fear. They fear their attorneys are not knowledgeable in a particular field, do not have sufficient professional connections to make up for their lack of knowledge, fail to recognize the need to research a client's particular needs, or do not recognize a particular need itself.(7) Gay, lesbian, and non-traditional clients may also be concerned about whether their attorneys are uncomfortable with who they are, with their partner, and with those whom they consider family.(8) Can the attorney adequately represent them? Is the attorney comfortable or hiding a personal bias? These are legitimate concerns for gay, lesbian, or non-traditional elders who place their fate and trust in the hands of a planning attorney.(9)

    For gay, lesbian, and non-traditional elders, some of the added risks of confiding in a planning attorney include disclosure of sexual orientation, personal bias of the attorney, social bias, legal bias, or the daunting nature of the extensive legal planning required to effectuate their wishes.(10) An elder planning attorney assisting gay, lesbian, and non-traditional elders must facilitate effective planning by considering a variety of difficult issues and by using and integrating the appropriate legal tools for assisting these elders.

    This Comment attempts to focus on the issues specific to preparing and drafting legal plans for gay, lesbian, and non-traditional elders by outlining issues of specific concern to these clients.(11) There are few legal resources discussing these topics--especially ones dealing with elder planning and creating partnership rights for elder non-married partners using legal documents. Hoping to contribute to the available resources for gay, lesbian, and nontraditional elders and the attorneys who assist them, this work is an initial resource for attorneys who find themselves servicing this type of client or for new practitioners with an interest in this area. This Comment begins by providing some background information on legal planning and explaining why gay, lesbian, and nontraditional elders need to rely on legal planning.(12) Then overviews of the topics of financial planning,(13) health care planning and insurance,(14) planning for incapacity,(15) and estate planning(16) are presented.


    1. Reliance on Legal Planning

      Gay, lesbian, and non-traditional elders must often rely on creative legal planning to guarantee them the family structure, benefits, obligations, and reliance most traditional elders may take for granted.(17) Traditional reliance on family and the legal benefits and obligations inherent in marriage do not exist unless gay, lesbian, and non-traditional elders, with the help of their attorneys, take it upon themselves to create such benefits; they must document the "very existence of their relationships"(18) using appropriate legal tools.

      Extensive legal planning is often used for those in business, those with large estates, or those with an incapacity requiring support or specialized care.(19) Increasingly, however, legal planning is also required for an aging population of moderate means.(20) Attorneys advising gay, lesbian, or non-traditional elders have an even greater obligation to stress the need and importance of legal planning than with their more traditional elder clients.(21) Without at least some basic legal planning, a gay, lesbian, or non-traditional elder may find many protections and conveniences in medicine, health care, taxes, probate, insurance, and finance--afforded to traditional elders through law and custom--denied them.(22)

    2. The Cost of Specialized Legal Services

      If gay, lesbian, and non-traditional elders are to rely on legal plans--which identify desires for person, property, and family, and secure related benefits, rights, and legal mechanisms to provide for their aging and retirement needs--then they must purchase additional legal services beyond those required by more traditional elders.(23) Such elders need additional legal planning not because of having wealth that would normally make such planning wise, but because of their unique circumstances and unique need for reliance on legal plans.(24) Many gay, lesbian, or non-traditional elders require legal planning, yet are middle income or even poor.(25) The elder planning attorney should consider her ability to take clients at varying income levels to insure gay, lesbian, and non-traditional elders can maintain their family structure and dignity as they age, regardless of income.(26) In the end, this is a challenge for the legal profession as a whole as gay, lesbian, and non-traditional family structures with varying degrees of wealth become more common.

      Indigent gay, lesbian, and non-traditional elders may be referred to legal service agencies or clinics.(27) Though a comprehensive elder planning package is outlined here, it is possible to assist middle and low income gay, lesbian, or non-traditional elders by tailoring packages of legal products which are specific to their needs and are not over broad for their income level.(28) This type of piecemeal legal service has been a matter of some contention within the traditional planning community.(29) For the elder planning attorney servicing non-traditional clients there is also a balancing act; practicing "unbundling"(30) while at the same time needing to provide multi-level planning to effectuate the wishes and needs of gay, lesbian, and non-traditional elders including repetitive legal documentation to confirm alternative family structures.(31)

      The additional cost of specialized legal services to the gay, lesbian, and non-traditional elder client also illustrates the professional costs and difficult choices facing the legal profession in this regard.(32) The specific challenge for the elder planning attorney serving the non-traditional community is convincing the client of the importance of elder planning despite such costs.(33) The thought of growing older can be painful. However, the thought of losing the independence of self expression and chosen family ties which a gay, lesbian, or non-traditional elder has become accustomed to may be a stimulus to find the funds necessary to do some legal planning to protect these priorities.(34)

    3. Definitions of Family

      Gay, lesbian, and non-traditional family relationships represent an additional challenge facing the elder planning attorney.(35) Everyone has close relationships that they consider important. As people age, these close relationships become even more important; they provide each of us with a social context. Non-traditional elders are no different. They have life partners, children, close friends, and biological family with whom they may or may not be close. Gay, lesbian, and non-traditional elders may have created an alternative family from one, some, or all of these associations.(36) How the law chooses to treat these alternative families varies depending on the jurisdiction and the subject matter in the law.(37)

      The most basic and apparent challenge for the planning attorney is when two elder life partners are not married.(38) Marital benefits, which pervade the areas of tax, inheritance, employment benefits and privacy rights, must be created for gay, lesbian, and nontraditional elders through the use of advanced planning documents and contracts.(39) The current and evolving debate about whether marriage should be extended to same sex couples will undoubtedly continue for some time.(40) However, regardless of the outcome of this debate, many elders will not marry; non-traditional families will continue, and their members will require legal planning which must be structured around a lack of marital benefits. Unmarried elders need legal planning that confers as...

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