Lavender Seniors Face Legal Challenges

I recently spoke to a lively group of Lavender Seniors in Oakland, hosted by a thriving organization serving the needs of East Bay lesbian and gay seniors (www.lavenderseniors.org), and on September 25th I’ll be a guest on AARP’s syndicated radio show.  These talks prompted me to consider the particular legal issues facing older lesbians and gay men, and reinforced my sense of how challenging the current legal complexity can be for our older brothers and sisters.    There are problems regarding decision-making, financial management, and estate planning concerns, and especially complicated questions regarding private and public benefits.

The decision-making questions are uniquely difficult for those who are without long-term partners, or whose partners are not mentally or medically competent.  Oftentimes the connections to families of origin are strained or non-existent, and in the absence of a younger close friend it can be hard to select an appropriate person to serve as a financial or medical decision-maker.   As for financial management, it is especially important that a trusted friend or professional be brought in to oversee bank and investment accounts, to ensure that there is no financial abuse or mismanagement.  The legal tasks are relatively simple: both a durable power of attorney and a medical directive are needed, and for those who have living trusts, naming an appropriate substitute trustee is required.

As for estate planning, the key tasks are making sure that a valid will or trust has been prepared and signed, and that an appropriate friend or professional has been selected as trustee or executor.  For those without a younger partner or friend to serve in that capacity, a bank officer or private trustee may be the best option.   It’s crucial that these tasks not be postponed, and the earlier they are completed the better.

Benefits issues are especially tricky, especially for those with long-time partners.  Current federal law does not recognize same-sex marriages or partnerships, which can sometimes be helpful (avoiding a disqualification from benefits based upon a partner’s income or assets) but in other situations, can be very negative (denying Social Security survivor benefits, or other Medicaid protections).  For these reasons, each couple needs to make a detailed assessment of the pros and cons of registering or marrying, comparing the state and federal rules as applied to same-sex couples — and this probably will require the assistance of a gay-savvy elder law attorney.

Hopefully the mainstream seniors organizations and advocacy groups will extend their efforts to include the needs of lavender seniors — and of equal importance, the established LGBT groups must take up the concerns of older folks in setting their advocacy and social priorities.

Complexity vs. Simplicity

One of the most frequent questions I face in the many radio interviews I’m doing this month — especially from straight interviewers — is how same-sex couples deal with the complexity of the current legal landscape.  I find that explaining this challenge is really helpful in pointing out  how discrimination works these days.  It is not just a matter of fewer rights or heavier tax burdens, but also, a dizzying complexity that can make basic decision-making very difficult.  There are inconsistencies between state and federal laws, especially regarding taxes, and convoluted discrepancies between various forms of registration.  Straight couples have the luxury of a nationally consistent legal system, and consistency over time that enables them to make decisions about parentage, home ownership, and financial and estate planning.

At the same time, we should not over-romanticize simplicity.  Twenty years ago lesbians and gay men had very few rights, and so life in those days was simple, but very difficult.  The complexities we face today are a result of dramatic progress, and while the movement has been far from comprehensive we should not complain too loudly about the recent developments.  Instead, we all need to learn to work with the complexity, to maximize our rights and protections while we continue to fight for full equality — at which point our lives will be simple in the best sense of the word.

Good News & Bad

A warm “thanks” to Art Leonard of New York Law School for his Lesbian/Gay Law Notes, a monthly publication that highlights the major legal events affecting the LGBT community.  The Summer 2009 issue (www.le-gal.org) covers the good news coming from Wisconsin, where the state legislature has extended a broad range of legal protections to registered domestic partners, including family leave, intestacy rights, powers of attorney coverage and exemption from certain transfer taxes — without calling it marriage.

The bad news this month comes from Louisiana, where a Court of Appeal rejected a parentage petition filed by a non-biological mother, on the grounds that she couldn’t establish that the biological parent was unfit.  In other words, being the partner when the couple decided to have the child and raising them together isn’t sufficient to establish parentage.   The lesson from Louisiana is clear: if you want to be a legal parent, move to a state where you can obtain a second-parent adoption!