In last week’s article, Dr. Marcy Adelman spoke about issues facing LGBT people diagnosed with dementia as well as their loved ones. This week, I’ll discuss what we can do to protect ourselves, our families, and our decisions in the face of incapacity. Creating an estate plan and finding inclusive care are two key components.
Estate planning is crucial, and not just to designate who receives which assets after death. It’s also about choosing people to act on your behalf for financial and medical decisions, and stating what your wishes are. For LGBT people whose families don’t neatly fit into a legal box or whose biological family members may be unwelcoming, this planning is even more vital.
A solid estate plan should include the following documents:
Durable Power of Attorney for Finances (DPOA) A power of attorney gives decision-making powers to another person. It can spring into action immediately, or only upon the incapacity of the person who executed it. This gives the person appointed the power to manage an individual’s finances when that individual no longer has the ability to do it him or herself.
Advance Health Care Directive (AHCD) An Advance Health Care Directive gives an individual the opportunity to state their desires regarding end of life care. On the doctor’s side, a physician can execute a Physician Orders for Life-Sustaining Treatment (POLST), ordering or disallowing certain types of care. Talk to your doctor to see if a POLST is appropriate in your situation.
Power of Attorney for Health Care (PAHC) Just as a DPOA appoints someone to act as agent for financial decisions on behalf of the principal (the person who executed the POA), a PAHC designates someone to make medical decisions.
Statement on Disposition of Remains Under California law, an individual can appoint someone to make decisions regarding funerary issues, or state what those wishes are him or herself. If no statement is written prior to death, then the law gives priority to an individual’s spouse/domestic partner or biological family members. Without a statement, transgender people whose families have not been supportive have been buried in clothing disrespectful of the individual’s gender identity. For non-recognized LGBT families, this could leave funerary powers solely in the hands of biological family members.
HIPAA Release This document gives authority to access an individual’s medical records and to speak to physicians. If this power is not included in a PAHC or DPOA, an individual’s agent could have difficulty getting the incapacity declaration necessary for the document to take effect.
Hospital Visitation Authorization Form Even with increased protections, these documents remove doubt about who can or cannot visit when an individual is incapacitated in a hospital or care facility.
Wills, Trusts, and Non-Probate Transfers For determining where assets go after death, there are a variety of options with various benefits and drawbacks: executing a will or trust, taking title as joint tenants, setting up a Transfer on Death (TOD)/Payable on Death (POD) account, and/or designating a beneficiary on a retirement plan or investment account. Without a plan in place, California law’s default rules control—for better or worse.
Another key component to ensuring proper care is choosing LGBT-inclusive care facilities, caregivers, and service providers. Before selecting a facility, caregiver, or service provider, ask questions to check on their LGBT cultural competency. Ask if the facility has openly-LGBT staff or residents, if they respect LGBT families, and if they are inclusive of transgender and gender non-conforming people. If you have friends or family members in a care facility or hospital, it is important to visit and stay in touch. You can be an important advocate if something is amiss. This is particularly important for people who lack the ability to communicate, such as people with dementia or people with disabilities affecting communication.
Each of us can make our wishes known and designate trusted people to make decisions on our behalf. By advocating for ourselves, our friends, and family members, we can ensure welcoming and inclusive care for all of us.
Daniel Redman is an elder law attorney with the San Francisco law firm of Johnston, Kinney & Zulaica LLP.
• Openhouse: 415-296-8995 openhouse-sf.org/
• Family Caregiver
• Institute on Aging: 415-750-4111, www.ioaging.org/
• National Resource
Center on LGBT Aging
• Project Open Hand
San Francisco: Nutrition
• SAGE: 212-741-2247
• Shanti Project, Inc: HIV Services and Life Threatening Illnesses, 415-674-4700
Alzheimer’s Association Programs and Services:
• 24/7 Helpline: 1-800-272-3900, www.alz.org/norcal/; Online Community: www.alzheimersblog.org/lgbt-forum
• Memory Clinic, Kaiser
Permanente Santa Clara Medical Center: 408-530-6900, mydoctor.kaiserpermanente.org/ncal/facilities/region/santaclara/area_master/departments/memoryclinic/index.jsp