As we age, our needs change. Whether social, mental, physical, financial—what we needed when we were in our twenties and thirties are often not the same things we need in our forties and fifties, or sixties and seventies, or if we are especially lucky, in our eighties or nineties. This is especially true with our legal needs. This article outlines some of the more common legal concerns facing America’s “Stonewall Generation.” The Stonewall Generation describes those baby boomers who came of age in the 1960s and 1970s, as Americans, for perhaps the first time, began to understand and recognize the fight for gay liberation.
Unlike their straight counterparts, though, LGBTQ+ elders often still find themselves fighting for inclusion and visibility. This is true in 2022, even though SAGE (an LGBTQ+-elder advocacy group) estimates that by 2030, there will be more than 7 million LGBTQ+ people over the age of 50 in the United States. Many of the Stonewall Generation, disenfranchised from the legal protections that straight Americans enjoyed for so many years, created ways to protect themselves in their later years. As legal rights have expanded, though, LGBTQ+ people should ensure that they are positioned to take advantage of all the protections and privileges afford to them under the law.
This article outlines four of the most important legal considerations LGBTQ+ elders (and, for that matter, any LGBTQ+ person) should consider.
Draft a Will
Any good lawyer will tell you that in North Carolina, every person has a will—it is either the will that you draft, or the will that the state drafts for you. For most of us, it is important to control how our assets, including our homes, our cars, our heirlooms, and our money, are distributed to those that we love, and those that we do not. A will is the legal instrument under which you can direct what happens to your assets at your death. Despite its importance, and wide-ranging unintended consequences that may result from failing to do so, most of us dread the notion of writing a will. In fact, most Americans—more than 68%, according to one survey—do not have a will at all. There are a variety of reasons for this; financial, social, but most prevalently, the fact that people are just afraid to think about death. But ignoring the inevitable (yes, inevitable), will not change anything—it will just frustrate your loved ones and complicate an already sad time.
As an example, in North Carolina, if you are legally married when you die, and have living children, then your property will be split equally between your spouse and your children; whether or not you intend that your children (or your spouse) inherit from you. Or, if you die with a living parent and a spouse, then your estate will be split equally between your living parent and your spouse. Which, again, may not be exactly what you intended.
Not only does the state decide how your assets are distributed, without a will, North Carolina law will also decide who has the right to serve as the executor of your estate, the right to wind up your personal affairs, and the right to distribute your assets. A well-drafted will, on the other hand, will include language necessary to ensure that your wishes are properly fulfilled through the selection of an executor that you trust to perform the duties required of them under the law. Obviously, because this person has significant power to direct the disposition of your assets and to act on your behalf after you die, this person should be able to handle both the emotional stress of your passing and fulfill your wishes, even if that person does not necessarily agree with them.
Draft a Power of Attorney
Along with a will that reflects your wishes, every person also needs a durable power of attorney (“DPOA”). As the name suggests, a DPOA permits you to designate someone (again, who you trust) to handle your financial affairs, especially if you are in an accident, have a serious illness, or are otherwise incapacitated. Unlike a healthcare power of attorney (which is discussed later), a DPOA permits someone to make decisions about your finances, your real property, and your assets, and to transact them on your behalf. There are various types of POAs, and a skilled lawyer can help you understand the differences and which kind you need. Importantly, a DPOA will ensure that, in the event of your death or incapacitation, someone can attend to your affairs on your behalf. Because of the serious nature of the PDOA, it goes without saying that this should be a person who you implicitly trust. But, it is equally important that you take the time to prepare your DPOA. Because often, by the time you need it, it will be too late.
Draft Healthcare Power of Attorney
A special type of Power of Attorney is called a Healthcare Power of Attorney (“HCPOA”) or a “Living Will.” If you do not have a DPOA, chances are you also do not have a HCPOA. An HCPOA specifically outlines what your medical desires; for example, whether or not you want lifesaving measures if you are in a sudden accident or if you desire to die a natural death. These are especially important, because in North Carolina, unless you have specifically directed that the physician or doctor should not take life-saving measures to prolong your life, then they will.
An HCPOA also protects your loved ones from having to make difficult decision. None of us wants to be the one to “pull the plug” for someone that we love. A well-drafted HCPOA prevents anyone from having to be the one to make that terrible decision. By outlining your wishes in the HCPOA, you have already made that decision for them. As you age, you should talk with your family about your changing health and your wishes for your care. A skilled lawyer will help you memorialize these decisions.
Equally important is to ensure that your insurance policies, whatever they may be, are up to date. Historically, LGBTQ people, especially gay men, have been unable to obtain life insurance. While that is changing, the insurance industry has not quite caught up to modern medicine. In any event, if you have insurance, make sure you have organized your documentation so that your beneficiaries know that they are entitled to receive funds. Insurance proceeds are distributed outside of the will, and very often, our beneficiaries need to be updated.
If you are unsure if your legal needs are met as you age, you should consult with a skilled attorney who has experience especially in representing LGBTQ people and their families. The Paulie Murray Bar Association has an excellent list of qualified attorneys who are prepared to assist with virtually any legal concern you have. Of course, there are none more skilled in this area that Connie Vetter of Connie J. Vetter, Attorney At Law, PLLC. Ms. Vetter has almost thirty years’ experience representing LGBTQ+ people and is regarded as an expert in these areas. You can reach her at (704) 333-4000.