This Blog was written by: Hannah Zip, Estate and Trust Consultant, Scotia Wealth Management
Proper estate and incapacity planning is important for people from all walks of life, however there are some special considerations that should be kept in mind when discussing estate planning with members of the LGBTQ2S+. This is especially true given the diversity within the community and some key differences between the younger and older members (“older” being defined as over 50). Some of the key differences between the younger and older LGBTQ2S+ generations are that the older generations are more likely to be isolated with little family support, they are not always “out”, and they have less awareness of their rights. Where there are difficult family relations due to the lack of acceptance of the LGBTQ2S+ individual by their immediate family, or where the individual has not come out to their family, it is especially important for the LGBTQ2S+ individual to put an incapacity and succession plan in place.
For incapacity planning, as many older LGTBQ+ persons remain unmarried or choose to be in common law relationships instead, naming their partner/spouse or a trusted friend as their decision maker in a Power of Attorney or Healthcare Directive is the only way to guarantee that their chosen person will act in their best interests and that there is no challenge to the appointment by a blood relative. Without a duly signed Power of Attorney or Healthcare Directive in place, there is a considerable risk that the partner or trusted friend will be excluded from the care of the individual if a related family member applies to court to obtain control of their LGBTQ2S+ relative. Having fulsome discussions and making no assumptions is important in these circumstances to ensure that the appropriate person is appointed.
Once an incapacity plan is in place it is helpful to advise clients that when they are travelling, they should carry some form of proof of their relationship in the event of being admitted to a hospital that will only deal with “family”. Transgender individuals face additional challenges and discrimination in institutions, including hospitals, where they are frequently misgendered, denied medical care and are verbally abused. Carrying formal documents appointing a person to advocate on their behalf is vital to ensure they receive the care that they are entitled to when they cannot speak for themselves.
Succession planning also has special considerations for an LGBTQ2S+ person. Given that many older LGBTQ2S+ individuals have common-law partners rather than married spouses it becomes very important for an LGBTQ2S+ individual to specify their wishes clearly in a Will. Otherwise, the partner of an LGBTQ2S+ individual may face challenges from their partner’s family, or they may risk being outed and face harassment and/or discrimination when they are forced to justify their relationship to the deceased. Many older LGTBQ2S+ people have not come out to their family, or they are estranged from their family, so this is particularly traumatic for the surviving partner to deal with while they are grieving. Naming the partner/spouse in the Will or defining the trusted friend’s relationship to the LGTBQ2S+ person in the Will is definitive proof of their standing and entitlement to the estate and/or to act as the executor. In some circumstances appointing a trust company to act as the Executor, and/or a property attorney, of a LGTBQ2S person is a good option to avoid conflict and to ensure that an estranged or unsupportive family member does not become involved in the administration of their estate.
An additional complication when doing estate planning for a LGBTQ2S+ person is that the legal definition of descendant does not necessarily include those that LGBTQ2S+ individuals consider to be their children. Under the law in some jurisdictions, a “descendant” is a child who is connected by blood or who is legally adopted. Many LGBTQ2S+ families include children that are born of a surrogacy arrangement where only one or neither of the partners is connected by blood. In some cases, the birth parent(s) are still in the picture while the LGBTQ2S+ couple is raising the child(ren) as their own. While society continues to evolve beyond the traditional view of “descendants” and “family”, the law has not caught up. Currently the only way to protect the children of LGBTQ2S+ individuals with an inheritance is to carefully name them in their Will instead of saying “my children”. LGBTQ2S+ individuals should not rely on intestacy rules or the legal definition of children to provide for their young ones in the event of their death. As the family expands the Will should be revised to ensure no child is inadvertently left out. Equally as important for LGBTQ2S+ couples raising children where only one partner is the legal parent of the child, a guardianship designation should be made in the Will to provide a clear indication of the parent’s preference which is usually respected by the court. This goes far to prevent a scenario where the family of the deceased birth parent attempts to take the child away from the surviving LGBTQ2S+ partner. This also applies to grandparents because they also cannot simply rely on the legal definition of grandchildren in their Will if they want to leave property to those they consider family. In some jurisdictions the definition of family has expanded, but succession planning with a well drafted Will is the only way to ensure that the final wishes of an LGBTQ2S+ individual are enforced.
While proper estate planning is important for everybody, individuals within the LGBTQ2S+ community can be more vulnerable than others for many reasons. Fortunately, as estate planning practitioners we can assist an individual exert control over their destiny by engaging in proactive and holistic estate planning. An understanding of the unique needs and the history of discrimination against the LGBTQ2S+ community in Canada goes a long way to building trust with our clients and providing the very best legal advice to them.