Creating a Living Will? Here’s How to Address Your LGBTQIA+ Loved Ones

No matter your political beliefs, one thing is certain: The legislative landscape is shifting in our country. With this shift come critical questions about how people can empower themselves and the people they love with their legal rights, responsibilities, and protections.

You may be one of many families with a family member who identifies as LGBTQIA+. How can you help ensure that your loved one is as safe as possible? Creating a Living Will goes a long way toward giving you and your family members peace of mind that your family is prepared for whatever may happen.

We’ve asked our provider lawyer, Heidi McGee of Willinger, Willinger & Bucci, PC, to weigh in on this sensitive subject. Let’s hear from Heidi McGee as she shares her insight about some common questions that you and other families may be asking.

What is a Living Will?

Heidi McGee lays out the details about a Living Will for us: “A Living Will conveys an individual’s health care instructions, including those concerning the withholding or withdrawal of life support systems, together with the appointment of a health care agent and an attorney-in-fact for health care decisions, and oftentimes the designation of a conservator of the person for future incapacity.  

Any physician who is treating the individual and any health care facility in or from which they are receiving care or treatment may rely on any decision made by the health care agent, attorney-in-fact or conservator of the person for health care decisions, if the individual is unable to make a decision for themselves.

“Note that to grant health care agency or to act as a healthcare agent, one must be of legal majority and capacity, so the ‘child’ we are speaking of is at least eighteen (18) years of age.”

How can you clarify your child’s identity in legal documents?

Since this legal document could be so important down the road, you want to make sure that your wording is precise, especially when it comes to properly labeling your child according to their wishes. Heidi McGee goes on to say, “The parent, in having these documents, should avoid labels like ‘my son’ or ‘my daughter,’ in favor of ‘my child,’ ‘my designee,’ or even leaving identifying labels out altogether.  Further, these documents should always be kept up to date, reflecting the child’s legal name, aligning the name of the child with their current legal name on government-issued IDs or documents.”

How can same-sex partners designate their partners under the law?

Heidi points out, “Many states do not recognize common-law marriage, or if they do, they do not extend this recognition to same-sex partners. Additionally, there may be concerns about these jurisdictions not giving full faith and credit to the laws of ‘foreign’ states that do recognize same sex marriages or civil unions.  

In order to avoid a same sex partner being denied a seat at the table when it comes to healthcare decisions because they are not acknowledged as ‘next of kin,’ it is important to have a document in place that is neutral in labels and pronouns, and that accurately aligns with the healthcare agent’s formal legal name.”

How can parents of adopted LGBTQIA and trans children help ensure their inclusion and identity in a Living Will?

Heidi has plenty of helpful tips about this important topic: “Adoptive status is more significant in after-death planning, when the laws of intestacy determine the distribution of a decedent’s estate if no Last Will and Testament has been prepared and properly executed.  

If there is not a label-, gender- and pronoun-neutral Will in place as a ‘road map’ to the distribution of assets after death, then it will be necessary to ‘prove’ the status of an adopted child, which may become a minefield if there have been legal name changes, legal changes in gender identity and the amendment of other legal identifying documents. The same would hold true for a same-sex or trans partner.”

What are some basic tips that parents with queer children can take away?

You want to protect your loved ones as well as you can. Shifting legislature can make it difficult to know exactly how to do that, but creating legal paperwork that accurately depicts your wishes and the identities of the loved ones whom you want to protect can greatly help.  

Sign up for a LegalShield Membership so you can get the assistance that you deserve as you plan for the future! Your LegalShield law firm can provide consultation, document review, phone call and letter assistance, and more essential legal services at a fraction of the cost that other lawyers charge by the hour.

Heidi provides some basic takeaways: “Put gender-neutral, label-neutral or label-free estate planning documents in place that line up with your LGBTQIA+ child and/or partner’s legal name as identified on government issued ID and documentation, to make sure to protect their ability to participate in your serious healthcare and other estate planning matters.”

Take the next step!

• See how LegalShield can offer access to legal help with estate planning.

• Check out our blog post on the importance of a Living Will.

‍

Written by Elyse Dillard, Content Specialist at LegalShield. Elyse creates educational resources about legal and identity theft protection services. She works to make complex legal concepts more accessible to readers and has contributed to numerous articles on the LegalShield blog.  

‍Heidi C. McGee has had diverse experience in municipal, criminal, and civil litigation matters before State Trial and Appellate Courts. Her areas of experience include property tax appeals, foreclosure, eminent domain, boundary disputes, and labor and employment matters. She has served as an Impartial Hearing Officer for the City of Bridgeport Board of Education, adjudicating student disciplinary presentments, and as a Civil Factfinder/Arbitrator for the State of Connecticut Judicial Branch. More recently, her practice has focused on Estate Planning and Probate matters and Real Estate and Land Use.

‍Pre-Paid Legal Services, Inc. (“PPLSI”) provides access to legal services offered by a network of provider law firms to PPLSI members through membership-based participation. Neither PPLSI nor its officers, employees or sales associates directly or indirectly provide legal services, representation, or advice. The information made available in this blog is meant to provide general information and is not intended to provide legal advice, render an opinion, or provide a recommendation as to a specific matter. The blog post is not a substitute for competent legal counsel from a licensed professional lawyer in the state or province where your legal issues exist, and you should seek legal counsel for your specific legal matter. Information contained in the blog may be provided by authors who could be a third-party paid contributor. All information by authors is accepted in good faith, however, PPLSI makes no representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability, or completeness of such information.

‍