Welcome to our 4th segment in our series on estate planning for transgender and queer persons.
When planning for the “T” & “Q” of the LGBTQ community, attorneys must understand the overlapping factors and relationships between retirement planning, estate planning, gender definitions, and legal interpretation. While we can control some factors, such as estate planning and applicable definitions, other factors, such as the laws governing retirement plans and statutory definitions of gender, are typically out of our control.
Additionally, estate-planning attorneys should consider planning in the context of Windsor for transgender and queer persons as we do for all clients: examining financial and non-financial issues. Yet, most attorneys also agree that non-financial issues are usually the more challenging part of planning.
The 3 categories generally considered in non-financial estate planning conversations are: (1) the client’s health and the health of close family members and loved ones; (2) family dynamics; and (3) lifestyle and retirement goals. This article focuses on health and issues attorneys face with healthcare Advanced Directives.
Good health and healthcare is important to everyone; transgender and queer persons may have more or less issues and some of their issues are different. So, this issue may or may not be important, and is only one of many for transgender and queer persons.
Assessing a client’s health for purposes of estate planning includes, but is not limited to, issues surrounding chronic or terminal illness. For transgender and queer persons, we should consider the implications of sexual reconstruction and potential related matters, e.g., whether our client has or had a therapist. All of these issues should be addressed in our clients’ Advanced Directives.
Other than certified copies of vital records, Advanced Directives are probably the most important documents a person can have during their lifetime. Additionally, like lesbian, gay, or bigender persons who are unmarried, transgender and queer persons generally need more than a basic power of attorney for healthcare and a living will and even if married. Advanced Directives should include:
1. Illinois Statutory Power of Attorney for Health Care;
2. Illinois Statutory Power of Attorney for Property
3. HIPAA forms 1 and 2
4. Illinois Mental Health Treatment Declaration
5. Hospital Visitation Authorization form
6. Illinois Living Will
7. Illinois Department of Health DNR-POLST
To be clear, a person’s sexual physiology is generally irrelevant for purposes of protecting a transgender or queer person’s interests. What is relevant and most important is how that person identifies on the societal gender scale. What is also relevant are the facts as that person wants them communicated, how and when the facts should be communicated, to whom those facts must be communicated, and that those facts are accurately and legally.
The Illinois Power of Attorney Act changed substantially last year, and the changes went into effect January 1, 2015. The changes provide individuals with more options regarding the authority they grant to their agents. Yet, more options also requires the need for more information on the part of the principal, which is why we do not recommend individuals completing this form without the assistance of an attorney. The issues to consider in the new Illinois Power of Attorney for Healthcare form cover 5 pages of questions whose considerations could result in a disastrous miscommunication of facts if not done in precise legal context.
Again, before addressing financial matters, especially for transgender and queer persons, estate-planning attorneys must ensure that carefully prepared Advanced Directives are in place. Otherwise, the wills and trusts could easily be contested and nullified.