Appropriate Wills and Estate planning is vital for people from all walks of life; however, it is essential to understand the nuances of members of different communities. We will examine some considerations for LGBTQ community members.
PLANNING IN CASE OF INCAPACITY
Decisions on health care
Same-Sex Couples must have a mandate in times of incapacitation when family; children, parents, and siblings do not accept them. Legally, when a person who cannot make decisions about their health care, priority is given to the spouse to make those decisions on their behalf. If there is no spouse, a close relative, or a person who has a special relationship with that individual will then have the right to do so. Relatives and persons in special relationships, such as Same-Sex Couples, are technically equal based on the law. But close relatives may have multiple votes while LGBTQ partners only one. For an LGBTQ individual’s partner to be guaranteed the right to make health care decisions, he or she must be named as a “protection officer” in a protection mandate. Without the expression of these wishes, there is a very significant risk that the partner cannot contribute to the care of the individual. Especially if a member of the related family goes to court to gain control of their LGBTQ family member. Besides, if the LGBTQ individual wishes his partner to make financial decisions without the interference of family members. He must appoint his partner as his “agent for the administration of his property” in his protection mandate. An LGBTQ individual is guaranteed the right to make health care decisions, but he must be appointed as a “personal protection officer” in a protection mandate.
Use of assets and income
You can not specify that your assets and income are used for the benefit of someone other than a protection mandate. If an LGBTQ individual wants his income or house to be used for the benefit of his partner in case of incapacity, this must be specified in his protection mandate. Without such a legal document, the partner will not have access to the finances and assets of the incapable partner for its use. When the incapable partner is the support of the family, there could be serious financial consequences.
It is best to express your wishes as to who will take care of you in a protection mandate. However, this desire is particularly essential for an LGBTQ individual and, more specifically, a transgender individual. In the case of medical care, transgender individuals must make sure to appoint a person with a strong personality. This person must also accept their choice and is ready to defend their interests with the medical community. In a recent US report, over 50% of transgender people reported that they had to educate health care providers about transgender care. 19% were refused medical attention, and 28% indicated to have been victims of verbal abuse. Choosing the right person for the protection mandate will help ensure that a transgender person receives the care to which they are entitled.
PLANNING THE SURVEY
Need to plan to protect partners
In the absence of a will, the law provides that the assets will be vested in spouses and descendants and, in the absence of descendants, brothers, sisters, nephews, and nieces, in specific proportions. Since many LGBTQ individuals have de facto partners who are not legally recognized under inheritance laws, an LGBTQ individual must make his wishes in a Will. Without such a document, the partner of an LGBTQ individual will be denied inheritance.
Need to plan to protect children
To make matters worse, the legal definition of offspring excludes several young people whom LGBTQ individuals regard as their children. Under the law, a descendant is a child bound by blood ties or legally adopted. Many LGBTQ families include children from surrogacy where blood ties link only one or none of the partners. In some cases, the natural parents are still in the portrait while the LGBTQ couples are raising the children as theirs. It is clear that society has evolved enormously beyond the traditional role of descendants and family, but there is still some way to go. Currently, the only way to protect children of LGBTQ individuals with an inheritance is to name them explicitly in a will. LGBTQ individuals should not rely on intestacy estates or the definition of a child to support their children in the event of their death. As the family grows, the Will should be reviewed to ensure that no child is inadvertently missed. In the case of LGBTQ couples who are raising children and only one of the partners is the natural parent of the child, it is also essential that the Will provides for a guardian for the children. Although the court will ultimately determine the guardianship of the child, this designation is a clear indication of the parent’s preference, which in most cases is respected by the court. This helps a lot to prevent the situation where the family of the deceased parent is trying to remove the
Besides, the grandparents of these children should be advised that they will not be able to rely on the definition of a grandchild in their wills if they want to ensure that they leave property to those they consider members of their family. In some jurisdictions, the definition of family has been expanded. Plan your succession and have a well-written Will; this is how to ensure that the wishes of an individual LGBTQ are respected.
It should be noted that preemptive measures may be taken to address some of the issues raised above. For example, in Canada, marriage is open to all couples and is not restricted to opposite-sex couples. An LGBTQ couple wishing to marry can avail themselves of the various rights and protections that spouses enjoy under the law. Besides, for LGBTQ couples who are raising children when one of the partners has no legal relationship with the child, the adoption will give that partner the same rights as a natural parent. These are personal decisions to be made by the couple; they are not for everyone but should be considered by LGBTQ couples, especially when they do not have the support of their families.
While good Will and estate planning are vital for all, LGBTQ community members may be more vulnerable than others, as their families may not support them. An individual can exercise considerable control over his or her destiny, provided that he takes advantage of the tools at his disposal. The tools mentioned above can be adapted to the specific situations of each person or couple and offer the peace of mind of knowing that their partner and their children are protected.
If you have any additional questions or would like to discuss your matter with us privately, feel free to book a consultation with us by calling 905-366-0202 or contact us through our website here.