Estate Planning Concerns facing the LGBT Community

At Nichol & Doering, PLLC, we always stress the importance of having estate planning documents with our clients.  These documents include Wills, Trusts, and Powers of Attorney (both general and medical).  With these documents, you can tell others how to take care of yourself and your family when you are no longer able to do so.  Having these in place is very important for LGBT Community, especially while the case for Gay Marriage here in Michigan is pending in the Michigan Supreme Court.  A good set of estate planning documents will ensure that LGBT couples can make the same decisions as their heterosexual counterparts. 

Before we get into detail about why the documents are important, let us go through a brief overview of what all these documents are.  First, there are two different kinds of Powers of Attorney, first a Medical Power of Attorney and a Durable Power of Attorney.  A Medical Power of Attorney allows an individual (the Principal) to designate another individual as his or her Patient Advocate.  The Patient Advocate is permitted to speak with doctors and make medical decisions on behalf of the Principal according the language in the document.  A Durable Power of Attorney works in the same way as a Medical Power of Attorney where the Principal is appointing an Agent to make decisions on their behalf.  These decisions are usually financial in nature, such as maintaining bank accounts, paying bills, selling property, and can include anything that it is not medically-related.

Wills and Trusts are documents that express the wishes of an individual on how he or she wants their family and property taken care of when they are no longer here.  These are extremely important for parents with minor children as both documents have the ability to appoint a Guardian for the minor children.  The basic difference between the two is that a Trust gives an individual more control on how and when a person can receive property from their estate, whereas a Will designates what will be done with property.

For the LGBT community and couples in particular, having these documents will be important for several reasons.  First, in the context of Powers of Attorney, LGBT couples do not have the “Next of Kin” rights that heterosexual couples have.  Therefore, it is likely that doctors and other professionals will not speak about medical decisions with the LGBT partner.  But with a Medical Power of Attorney, the Patient Advocate can speak with the doctors regardless of that person’s relationship to the Principal.  The same applies to a Durable Power of Attorney.

Second, LGBT couples do not have the same protections as heterosexual couples when it comes to children.  Because Michigan does not currently have Gay Adoption, whoever has been designated as the legal parent cannot guarantee that his or her partner will be the legal parent if he or she passes away.  However, by having a Will or Trust, an individual can designate his or her partner as the Guardian of the children should he or she pass away before the children reach 18 years of age.

Additionally, without a Will or Trust, a person’s property would go through intestacy and be divided amongst his or her heirs.  In this situation, an LGBT partner would not be considered an heir to that person’s property.  With a properly drafted Will or Trust, a person can devise their property to whomever they wish.

We hope that this provides you a good insight into the importance for LGBT couples to discuss estate planning with themselves and an attorney.   Thank you for taking the time to read our blog and please feel free to contact us if you have any questions or comments.


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