LGBTQ+ Elders and End-of-Life Planning: The Documents That Protect Your Wishes

Estate planning matters for everyone, whether you’re married, single, straight, or LGBTQ+. But for many LGBTQ+ older adults, a few signed documents carry extra weight. Some are estranged from biological family, some outlived a partner, many are unmarried, and many rely on chosen family. Without paperwork, the law’s defaults tend to hand authority to legal relatives. This guide lists the documents advocates recommend and why each matters.

Why do documents matter so much?

The Administration for Community Living (ACL), in an issue brief on LGBTQ+ older adults, says advance planning documents (wills, financial powers of attorney, and health care advance directives) are critical. It notes that although progress has been made, legal challenges can still arise around inheritance rights, health care decision-making, recognition of chosen family relationships, and ensuring that an LGBTQ+ individual’s choices are honored. It also notes that advance planning can serve as an alternative to guardianship and help avoid the need for it if someone later can’t make decisions. Marriage equality since the Supreme Court’s 2015 decision in Obergefell v. Hodges has changed the picture for married couples, but not for those who are unmarried, widowed, or relying on friends.

What documents do advocates recommend?

The LGBTQ Aging Center, run by SAGE (the National Resource Center on LGBTQ+ Aging), lists the legal documents every LGBT older adult needs. Its list and related guides include:

1. Medical power of attorney or health care proxy. Lets you appoint the person of your choice to make medical decisions if you can’t. The center notes it’s also called a durable power of attorney for health care. In Texas, for example, the statutory default surrogates, absent a proxy, are a spouse, adult children, parents, then nearest living relative. See chosen family and death.

2. HIPAA authorization. Allows health care providers to disclose information and records to the people you designate. The SAGE and Compassion & Choices advance care planning toolkit notes that life partners and chosen family may not be given access or authority unless you’ve named them in the right documents, and it includes a HIPAA waiver among its recommendations.

3. Financial power of attorney. Names someone to manage your money and pay bills if you can’t. The Family Caregiver Alliance calls it a very powerful document for LGBTQ+ care receivers and caregivers.

4. Funeral directive. Lets you spell out your arrangements and give a designated person authority over them. The center recommends a separate directive even if your health care proxy covers it, and points to Lambda Legal’s guide for protecting your wishes for your funeral. In Texas, the right to control disposition goes first to a person you designate in a signed written instrument, using a statutory appointment form that Texas’s funeral service regulator publishes, before it goes to a spouse or relatives. See right of disposition.

5. Hospital visitation directive. Federal rules already let hospitals’ patients designate visitors, but a written directive makes your wishes clear; see hospital visitation and medical decisions for unmarried partners.

6. Living will. States which treatments you do or don’t want; see advance directives, living wills, and healthcare proxy.

7. Will or trust. Without one, state intestacy law decides who inherits, and chosen family generally isn’t included. See what happens if you die without a will.

8. Updated beneficiary designations. Retirement accounts, life insurance, and payable-on-death accounts pass to whoever is named, regardless of what your will says. Review them after any life change.

What about transgender elders and name changes?

The LGBTQ Aging Center’s legal resources library lists fact sheets on issues facing transgender older adults. A practical point from us, not a legal rule: make sure your documents use your legal name, clearly identify your agents, and consider stating in your funeral directive how you wish to be named and remembered. An attorney experienced with transgender clients can help.

How do I get started?

1. Choose your people and backups, and ask each if they’re willing
2. Find forms and an attorney. The LGBTQ Aging Center and SAGE publish toolkits; the center cautions that state laws vary widely and recommends consulting an attorney. Many states have free statutory forms; legal aid organizations and bar referral services can help
3. Sign correctly, with notary or witnesses where your state requires
4. Distribute copies to your agents, doctor, hospital, and a trusted person
5. Tell your chosen family and relatives where documents are, to reduce conflict
6. Review every few years and after life changes
7. Consider a “my wishes” letter about care, memorials, and legacy; see getting your affairs in order

This is general educational information, not legal advice. State laws on advance directives, funeral authority, and inheritance vary and change. An attorney experienced in LGBTQ+ estate planning can prepare documents that are valid and effective where you live.