As the novel coronavirus known as COVID-19 continues to spread, the current pandemic has many people worried about their ability to access health care, and about what will happen if they are suddenly incapacitated. Many are also finally making time for the estate planning that many attorneys have been encouraging for years. Advance planning is important for everyone, but because LGBTQ people are more likely than their straight and cisgender peers to rely on families of choice, advance planning is the only way to ensure that they receive respectful health care, and that life-and-death decisions are made by people they trust.

Careful estate planning can avoid dire consequences, such as when a transgender man receiving medical care at an emergency room found that hospital staff failed to call him by the name on his identification and insurance card, and instead used his former legal name because it was listed in old treatment records that pre-dated his legal name change. Without advance planning, people who rely on support from a friend or chosen family, or on an unmarried partner, may be at the mercy of estranged relatives. And less than two years ago, when a transgender woman died without written funeral directions, relatives with authority over her funeral, who had refused to accept her identity while she was alive—held services that erased her female identity.

This column could not provide an exhaustive list of every issue, but identifies three potentially overlooked areas of importance to advance planning for people who are LGBTQ: Using advance planning questions and forms that expressly include LGBTQ people, to gain trust. Asking questions about prior and current relationships, or children, and other relatives, because particularly for older LGBTQ adults, history can be complex. Drafting detailed directives for care providers and family members so that that your client's care will respect their identity.

First, gather information without presuming that your client is straight and cisgender. When meeting with a lawyer, many LGBTQ clients—particularly older people, with long memories and history of discrimination—may be reluctant to volunteer more than the information you request. By using questionnaires and forms that are inclusive of LGBTQ individuals and families, you encourage trust. Do not expect that you or your staff will recognize whether someone is LGBTQ based on appearance, because unlike members of many other minority groups, many LGBTQ adults—and particularly older LGBTQ adults—are not readily identifiable.

They have learned to manage the disclosure of their sexual orientation or gender identity. Many have had personal or social experience with anti-LGBTQ discrimination and do not want to expose themselves further. Many older adults entered adulthood when discrimination and even criminal status were givens. Older adults came of age during the years when many states criminalized intimacy between adults of the same sex—laws that the U.S. Supreme Court had deemed constitutional until its 2003 ruling, in Lawrence v. Texas, 539 U.S. 58 (2003). that states could not criminalize same-sex intimacy. Those laws stigmatized LGBTQ people and increased discrimination against people in child custody, employment and many other areas. And older adults came of age decades before same-gender couples could marry within the United States (beginning with Massachusetts in 2004); and decades before the U.S. Supreme Court held that the Constitution required the federal government and the states to recognize and respect marriages of same-sex couples. See United States v. Windsor, 570 U.S. 744 (2013) (federal recognition); Obergefell v. Hodges, 576 U.S. 644 (2015) (state recognition). And LGBTQ adults are aware that federal and state laws still do not explicitly prohibit discrimination based on sexual orientation or gender identity.

Regardless of their specific generation, because today's LGBTQ older adults spent a great deal of their lives having to mask their sexual orientation and gender identity, counseling them about advance planning requires being thoughtful about the issues to anticipate and about asking about them with sensitivity.

Second, careful advance planning requires questions designed to capture the full range of an LGBTQ person's chosen and biological family relationships. Most laws fail to recognize families of choice, and LGBTQ older adults are far more likely than their straight and/or cisgender peers to be single, childless, and estranged from biological relatives. LGBTQ people rely far more heavily on friends and community members—their chosen families, who often are their peers—for social connections, care and support. Therefore, it is important to ask clients open-ended questions when gathering information about the people who are important to them.

Many older LGBTQ people have had varied life experiences that can easily be overlooked. Because many did not openly identify as LGBTQ until later in life, even more than their younger peers, many older people have had previous marriages, and many older LGBTQ people have children from those previous relationships. For couples who have been together since before 2005, evaluate whether, despite not having a formal ceremonial wedding, they may be in a common-law marriage, and draft documents accordingly to avoid or minimize later disputes.

Third, in addition to identifying who is to make important decisions on your client's behalf, advance planning offers your client an opportunity to give clear and specific directives about the care, treatment, and respect they want to receive. It continues to be the case that many LGBTQ adults are and will remain unmarried—even if they are in a long-term relationship—and because many will continue to rely on families of choice and unmarried partners as their primary support providers, and those are the people they will want to designate to inherit from them, make decisions on their behalf, and have the power to control their assets. But absent a will, inheritance follows the intestacy statutes, with property going to various family-of-origin members or, if none are alive, to the commonwealth of Pennsylvania. 20 Pa.C.S.A. Section 2101. A will allows a person to determine who will inherit their belongings. In the absence of advance planning documents, statutes addressing disposition of remains, and health care decisions, also set out kinship presumptions that track intestacy statutes.

When drafting advance planning documents for LGBTQ community members, ask your client broadly who they consider to be family. A durable power of attorney can ensure that one's trusted chosen-family member will be able to control your client's care and other matters, even when your client is incapacitated or in hospice care. These documents are particularly important if your client has "kinship" family members they want to prevent from using that power.

A power of attorney allows your client to designate not only an appropriate decision maker, but also to identify the treatment they want to receive or to not receive. In addition to more widely used provisions about medical treatment, a person who is transgender can direct the use of chosen name and appropriate gender pronouns, regardless of any other name(s) or gender listed in other records. An advance directive can provide that some information, such as a legal name that your client does not use, be kept confidential, protecting them against stigma, harassment, and discrimination. It can include directions for gender-affirming clothing and grooming. In short, thinking through these issues can avoid your client being treated disrespectfully in medical or other situations.

Help your client describe important details for their funeral, including how they want to be identified, dressed, and referred to—and who is to be listed as family (including, perhaps, who should not be listed). Ask them to identify who they would like to carry out their funeral wishes —and who might object to those plans. Encourage your client to talk with that person about those plans. Pursuant to 20 Pa. C.S.A. Section 305, "absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence" the person with sole authority to determine decisions concerning the disposition of a decedent's remains is the decedent's surviving spouse or "next of kin."

Asking each client—without presupposition and using open-ended questions—to identify their wishes, and who the client trusts to carry out those wishes, is the best way to ensure respect. Because many older LGBTQ older adults rely on other older adults for support, identifying one or two backup choices is particularly important.

I hope this helps to illuminate some of the unique issues to consider when advising LGBTQ clients on advance planning decisions, so that they receive the best representation that our profession can provide. If we can be of any assistance as you help your clients navigate these important decisions, contact Mazzoni Center Legal Services and we will try to help.

Thomas W. Ude Jr. is the Legal and Public Policy Director with Mazzoni Center, a Philadelphia nonprofit organization providing health, wellness and legal services to the lesbian, gay, bisexual, transgender and queer communities. He leads Mazzoni's program providing direct legal services to LGBTQ people on issues that include family law, advanced planning, name changes, and addressing discrimination in employment, insurance, health care and other aspects of community life. Contact him at [email protected].