Hoge Partners, PLLC - Louisville, Kentucky - LGBTQ Family Law Issues

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Hoge Partners, PLLC
First Trust Centre
Suite 400 South

200 South Fifth Street
Louisville, Kentucky 40202
Fax:  (502) 583-1223
Phone:  (502) 583-2005

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Elder Law and Estate Planning in the LGBTQ Community

Since 2015, same-sex marriage has been legal in Kentucky as well as the rest of the country.  Two of the many areas of life affected by this decision are Elder Law and Estate Planning

Elder Law 

Like all population groups, LGBTQ individuals have to address legal rights and obligations as they age.  Today, married LGBTQ people share with heterosexual individuals the same rights for access to their spouse during a medical crisis, the ability to make emergency medical choices for their spouse, certain real property rights, etc.

Unless married, a LGBTQ partner may not be entitled to family medical leave when the other partner is seriously ill.  Unless married, a LGBTQ partner likely will not be recognized as "next of kin".  Unless married, LGBTQ individuals may be excluded from decision-making about their partners' medical care, long-term care arrangements, funeral plans or other decision making.  There are certain legal measures one can take (Powers of Attorney, living wills or Healthcare Directives) which can prevent these issues but they require specific action before the need arises.

Other issues which affect older LGBTQ individuals include financial insecurity, barriers in accessing Social Security benefits, Medicaid benefits, pension or retirement assets.

If you are LGBTQ and in a long-term relationship, talk to us about whether you need to do in order to grant decision-making authority to your spouse or other individual in the event you become incapacitated.

Powers of Attorney

A specific Power of Attorney can give a person the right to execute documents and make decisions regarding a specific event, transaction or task.  For instance, if you need to close on a piece of real estate but something comes up and you cannot attend the closing in person, then you can give a trusted individual a limited or specific Power of Attorney granting that person the power to sign legal documents on your behalf to complete the real estate transaction.  A Power of Attorney can be limited in a wide variety of ways -- length of time, to a specific transaction, only under special circumstances, etc.

A general Power of Attorney, on the other hand, can give a trusted individual broad authority with respect to one's personal and financial affairs.  However, a general Power of Attorney runs the risk of being challenged in the event that the person granting the Power of Attorney becomes incapacitated and is unable to direct the person acting under that Power of Attorney as to the grantor's wishes and preferences.

This is where a Durable Power of Attorney comes into play.  Under a Durable POA, the grantor (the person granting someone authority to act) specifically states that the Durable Power of Attorney only becomes effective in the event that the grantor has become incapacitated, generally as a result of extremely poor health.  Usually, the Durable POA would become valid once a medical provider has made the formal determination that the grantor is no longer capable of making his or her own personal and/or financial decisions.

Talk with an experienced Family Law attorney to determine if granting someone a Power of Attorney is appropriate for your situation.

Living Wills

The Kentucky Attorney General's website has an excellent discussion on the subject of Living Wills in Kentucky.

See http://ag.ky.gov/civil/consumerprotection/livingwills.htm

There you will find an explanation of the Kentucky Living Will Directive Act of 1994 as well as forms to permit you to prepare your own Living Will and Healthcare Directives.  You can do this yourself . . . for free. We are providing the link to this information to you as a public service because we believe everyone should have a Living Will.

See also our section on Estate Planning and:

KRS 311.623 - Living Will Directive
KRS 311.629 - Powers of Health Care Surrogate
KRS 311.631 - Responsible Parties Authorized to Make Health Care Decisions (if you have not designated a Health Care Surrogate)

Estate Planning

Regardless of our age or sexual orientation, we all need to think about managing our financial resources in such a way that resolving them our death does not create a burden for our loved ones.

If you and your LGBTQ partner were not married when you purchased real estate, invested in a business or created some other asset, you need to consult with an attorney experienced in both estate planning and LGBTQ rights.

  • Were you married elsewhere before same-sex marriages were recognized in 2015 here in Kentucky?

  • Were you married before or after acquiring real estate together or separately?

  • How is the property deeded?  Joint tenants?  Tenants in common?  Right of survivorship?  Tenancies by the entireties?

  • What are the couple's wishes regarding specific assets in the event of their deaths?

These are all questions you need to review with an attorney with experience in estate planning.  (See also our page on Property and Real Estate Rights of Unmarried versus Married LGBTQ Couples.)

Your will, powers of attorney, trusts and other estate planning instruments need to be carefully reviewed from time to time, whether you are married or not.  But this is especially true for LGBTQ couples as it's important to determine the impact that recognition of same-sex marriage may have on these instruments.

Further, if you're preparing to marry your same-sex partner, you need to consider whether a prenuptial agreement is appropriate for your situation.

 


 

Other LGBTQ Legal Issues:

Gay, lesbian, bisexual, transgendered and non-heterosexual couples and individuals have other significant legal issues besides dependency, abuse and neglect cases, such as:

The attorneys at Hoge Partners, PLLC will be happy to talk to you about your legal options affected by gender identity and/or sexual orientation.  Call us today.