LGBT Estate Planning

Maryland Lesbian, Gay, Bisexual
& Transgender Estate Planning

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Four Ways To Prepare for the Unexpected

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In this astonishing year, where reality is even stranger than fiction, it’s hard to know what will happen next. Economic insecurity, natural disasters, and political upheaval all fuel a sense of anxiety—especially among many of us in the LGBTQ community. And of course, these worries come in conjunction with concerns about our own health and the fear of COVID-19.

In this climate of uncertainty, the best steps we can take are to control the things we can, to be ready for what could happen, even if it can be hard for us to think about. Here are five things you can do to help you prepare for the unexpected:

1. Prepare an advance directive. This legal document enables you to name someone to manage your health care if you become unable to do so for yourself. The person you choose, called your “health care agent,” can work with your doctors to help ensure that you receive the best care possible.

An advance directive also allows you to choose the type of treatment you would like to receive in an end-of-life situation, like a terminal illness. Many people simply want to be kept comfortable when the end is near. Others choose interventions, such as artificial nourishment and hydration. Whatever your wishes, preparing an advance directive will enable you make them clear to your health care agent and your doctors.

Your advance directive can also say who should make your final arrangements when the time comes. This sensitive and important responsibility would typically fall to your next of kin. Many of us in the LGBTQ community would rather name someone close to us—a dear friend or important family—to take on this role. Your advance directive is the perfect document for naming the best person for the job.

In this climate of uncertainty, the best steps we can take are to control the things we can, to be ready for what could happen, even if it can be hard for us to think about.

2. Prepare a power of attorney. This document is like an advance directive, but it’s for financial matters. If an illness or advancing age leaves you unable to pay your bills, file your taxes, or manage your assets, your “attorney in fact” can do these things for you.

In Maryland, it’s important to have the state’s statutory power of attorney, which banks and other entities are obligated to accept. You can even include special instructions, such as authorizing your attorney in fact to make gifts on your behalf, whether to minimize taxes or fulfill a charitable pledge. If you own a business, your attorney in fact can be authorized to run the business when you are unable to.

These two documents, your advance directive and power of attorney, will help you weather an unexpected illness or any other period of incapacity. There are, however, other steps you should also take in case the unexpected becomes the inevitable.

3. Prepare a last will and testament. Perhaps the most important document you will ever sign, a will not only says who should inherit your assets, it also enables you to name someone you trust to manage the process. This person, called your “personal representative,” will marshal your assets, pay any taxes and creditor claims, and if necessary, sell your house and belongings as your will directs. Without a will to guide them, the courts could appoint one of your relatives to take on this responsibility—possibly an estranged sibling or someone else who would not be your first choice.

A will can also place assets into a trust to provide for a young person, minimize death taxes, or take care of someone with special needs. If you have pets, your will can say who should take care of them, and possibly include a bequest of money to help cover the costs of pet care. A will is especially important for those with minor children, who should nominate someone to act as the children’s legal guardian.

4. State your funeral preferences. Finally, and in some ways most importantly, you should leave instructions for your final farewell. Many of us have very specific ideas about what our funeral or memorial service should look like, and how our remains should be disposed of. An estates and trusts attorney can provide you with a form to help you organize your thoughts. With this document in hand, your personal representative or health care agent can plan a sendoff that will be meaningful to your loved ones and reflect your wishes.

These are just some of the factors to consider when preparing an estate plan. To get started, talk to an estates and trusts attorney who is a member of the LGBT community. If you already have a plan in place, this would be a good time to review it. In this COVID-19 world, many attorneys are happy to begin with a video conference.

Once your plan is complete, you can enjoy the peace of mind that comes from knowing that you are ready for the unexpected. You can’t control the future, but you can plan for it.

Lee Carpenter is an Estates & Trusts attorney at Niles, Barton & Wilmer, LLP and an Adjunct Professor at the University of Maryland Carey School of Law. This article is intended to provide general information about legal topics and should not be construed as legal advice. For qualified legal counsel contact Lee Carpenter at lcarpenter@nilesbarton.com or 410.783.6349.