In this era of same-sex marriages and Title VII protection, is there still a need to distinguish the legal issues facing the aging LGBTQ population? The short answer is yes. This pamphlet has been prompted by the continued disparity between the health care of LGBTQ persons versus that of heterosexuals. Additionally, LGBTQ persons are less likely to be married and more likely to be ostracized from their families. Oftentimes, this family shunning leads to LGBTQ persons adopting their friends as their family. This pamphlet discusses the legal measures that need to be formalized to recognize these important relationships both in life and after your passing.
Healthcare
A power of attorney for healthcare is important if you want to be able to select the person making medical decisions and advocating on your behalf, should you lose the capacity to do so. Additionally, a power of attorney for healthcare can ensure that your partner or close friend has the same access to your medical information as you, regardless of the healthcare provider’s prejudices. Illinois provides for a powers of attorney for healthcare under chapter 755 of the Illinois Compiled Statutes. The statutory form provides its user with the ability to name their own healthcare agent and the agent’s successor. Furthermore, the form allows its author to identify their wishes regarding healthcare and end of life decisions. Additional information regarding power of attorney for healthcare can be found in the Illinois State Bar Association (ISBA) pamphlet titled Your Guide to Your Health Care.
It should be noted that a power of attorney for healthcare has limitations when it comes to some mental healthcare treatment. These limitations are triggered by the fact that mental health treatment can fall under the protection of the Illinois Mental Health and Developmental Disabilities Act. Thus, there are different protections in place for non-consenting persons under this act. Illinois does have a form that a person of sound mind can execute to set out their wishes for mental health treatment. In that form, there is a section where you can fill in the name of the person to speak on your behalf, in case you lose the capacity to make informed decisions or act as your “attorney-in-fact.”
If you have not executed a power of attorney for healthcare and you lose the capacity to make your own informed healthcare decisions, your medical service providers will turn to a healthcare surrogate. Illinois sets out a statutory order for those persons that should be named your healthcare surrogate. The order is as follows: a healthcare guardian, a spouse, an adult son or daughter, a parent, a brother or sister, an adult grandchild and then finally a close friend of the patient. Thus, if you lose the capacity to make healthcare decisions all of the above relatives will be allowed to make those decisions before your close friend or partner. Unfortunately, often times these relative healthcare surrogates are given the authority to dictate what visitors you are allowed.
Instead of a power of attorney, many individuals think they need a living will. A living will can be used to dictate what measures you want in place for life sustaining treatment. But, those same limitations can be set out in a power of attorney for healthcare and the agent named in the in your power of attorney can make sure your wishes are being observed. Furthermore, a living will does not name a person to act as your healthcare surrogate, so a healthcare surrogate will still need to be appointed for medical decisions not covered within the living will (e.g., placement in a residential facility).
Illinois also has a practitioner orders for life sustaining treatment (POLST) form. A POLST allows a patient, with a serious illness, the opportunity to answer questions regarding their preferences for life sustaining treatment, while they are still able to make informed decisions. With the Power of Attorney for Healthcare and POLST available, a living will shouldn’t be necessary unless you have no one you can trust to make your healthcare decisions or your Power of Attorney for Healthcare lacks any specificity regarding life sustaining treatment and you’re afraid something will happen before given the opportunity to fill out a POLST.
Property
Just as you should be concerned about who is making healthcare decisions for you, you should also think about who will handle your financial matters if you are still alive but have lost the capacity to handle your finances. Joint accounts and joint titles allow the other party to have access to the account or title. Make sure you trust any person listed on your account or you limit the amount of resources available to that person. Debts and assets that are not held jointly must be dealt with in another way.
Like the power of attorney for healthcare, Illinois also has a statutory power of attorney for property found in chapter 755 of the Illinois Compiled Statutes. This form is very powerful and can allow the agent to have unrestricted access to your assets and debts. But the form can also be used to restrict the amount of access given to your agent and under what circumstances a person can become your property agent. It is important to note that this power of attorney terminates upon the death of the principal. After a person’s passing, the financial matters should be handled by the executor of the estate or that person holding the letters of administration to handle the estate. Oftentimes, powers of attorney are included with the process of your estate planning. Please see the ISBA pamphlet titled Your Guide to Estate Planning for more information on powers of attorney and other estate planning matters.
Unlike Illinois’ Healthcare Surrogate Act, there is no statutory authority to automatically have an agent appointed over your finances if you do not have a power of attorney for property. If you should lose the capacity to handle matters within your lifetime, a person seeking the right to assist you will have to go through the court system. Therefore, without any advance planning, a person that has lost their capacity to handle their finances can become the subject of an adult guardianship petition. These matters can become very messy and involve long lost relatives entering into the fray at the 11th hour. Guardians can be appointed by the court to handle both healthcare and property matters. But the court should not be able to appoint a guardian when the subject of the petition has executed a valid power of attorney and the agent is acting in the best interest of the principal. That’s why it is so important for any person, not wanting to have a family member make decisions regarding their healthcare or their finances, to have valid powers of attorneys executed. Additional information on guardianships in Illinois can be found under the “Your Family” section of the ISBA pamphlets.
Estate
Aside from these concerns facing the aging person in their lifetime, the reader should also give some thought to what will happen to their estate after they pass away. Oftentimes there is a misconception that when a person dies without a will, their estate goes to the state. This is not true in Illinois unless the deceased owed a lot of money to the state. Just like the Healthcare Surrogate Act, Illinois has legislation in place to dictate what happens to an estate when there is no valid will.
The Illinois intestacy statute sets out that first just claims against the estate must be paid, but the remaining estate will pass first to one’s spouse and children. If there is no spouse, then everything goes to the deceased’s children. If there are no children, then the entire estate goes to the spouse. If there is no spouse or children, then the estate is spilt between the deceased’s parents and siblings. If there are no parents or siblings, then the estate would pass to grandparents and so on. Only if there are no surviving relatives does the estate pass to the county.
In this long list of statutory heirs, you will notice no mention of domestic partners or close friends. This is a good reason for having a will drafted. Although a will doesn’t guarantee that an estate won’t go through probate, it does guarantee that the people who are the closest to you and the worthiest will be the people who inherit your estate. A will would also enable the estate owner to nominate who they want handling their estate after their passing (or their executor). Furthermore, you can speak with an attorney about possible measures that you can take in your lifetime to reduce the tax and probate consequences that come with your estate. Please see the ISBA pamphlet on estate planning for further information on this important topic.
Social Security and Marriage
There are a number of factors to consider when deciding whether to marry or not. A big consideration should be your future social security benefits. If you legally marry or enter into a legally recognized relationship (in Illinois that includes state civil unions), you automatically become eligible for a percentage of your spouse’s social security benefits, both in life and death depending on your own benefits or pension.
But what if you were previously married? If you were married for ten years or more, but are currently divorced, you may be eligible for spousal benefits during the course of your ex-spouse’s life and even after death. If you remarry, you could lose those benefits as long as you remain married. At one time, the federal government did not recognize couples in civil unions. That is no longer the case. For all practical purposes, a civil union will be considered a marriage by both Illinois and the federal government. So, both a civil union and marriage will terminate your rights to a divorced spouse’s benefits.
However, the Social Security webpage sets out that if you re-marry after the age of 60, it should not affect receiving your survivor benefits from an ex-spouse upon their death. There are a lot of factors that are at work in determining when and if you will get social security benefits at your or your spouse’s retirement age. Make sure you are aware of the repercussions of entering into or dissolving a legal relationship before you take that big step.
Prepared by the Illinois State Bar Association's Standing Committee on Sexual Orientation and Gender Identity (2020)