In a shifting political landscape, LGBTQ+ clients may find themselves at risk of losing crucial rights and protections. As their attorney, you play a vital role in helping them navigate this environment by offering guidance on safeguarding their legal rights and family protections. Below is a detailed overview of the advice you can provide to LGBTQ+ clients to ensure they are well protected.
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Advocate for Comprehensive Estate Planning as a Defensive Measure

For LGBTQ+ clients, estate planning is not merely a financial or administrative tool; it’s a fundamental form of protection. By clearly defining their wishes, clients can avoid unwanted interference and guarantee that their choices are respected. Explain to clients that these documents serve as their first line of defense, securing both their autonomy and the integrity of their relationships. Key documents to highlight include:

• Revocable Living Trust: This document is a powerful tool for privacy and control, acting as a buffer against both government and family intervention. It also bypasses probate, ensuring a smooth transfer of assets. A living trust has been a cornerstone for LGBTQ+ couples, especially before marriage equality, as it helps legally recreate the protections of marriage. Explain how this “moat” around their relationship can offer lasting security.
• Durable Power of Attorney: With a durable power of attorney, clients empower someone to act on their behalf, should they become incapacitated. This document is particularly important for LGBTQ+ individuals, as it gives trusted persons control over financial and legal matters, safeguarding against outside interference during vulnerable times.
• Health care Directives and Hospital Visitation Authorization Forms: Medical emergencies can be especially challenging for LGBTQ+ clients if their relationships or chosen family structures are not recognized. Ensure they understand the importance of having both a health care power of attorney and a hospital visitation authorization form, especially when traveling internationally, as marriage recognition is not universal. For those with chosen families—“framily” members who may not have legal status but are integral to their support system—ensure they create separate hospital visitation authorizations. This allows their chosen family members visitation rights, guaranteeing that those who truly matter are present in critical times.
• Pet Care Directives: Pets are often part of a client’s chosen family, especially within the LGBTQ+ community. A pet care directive can provide peace of mind by appointing a caregiver, detailing veterinary care, and allocating resources for their pet’s wellbeing.

Address the Current Realities of Marriage and Marriage Planning

Marriage can offer a range of legal benefits and security, but LGBTQ+ clients should be informed of the specific nuances affecting them. With marriage rights potentially at risk, clients may feel pressured to marry preemptively. Provide them with a balanced perspective on this decision by highlighting the 1,138 federal protections marriage grants, covering areas such as inheritance, Medicaid, tax benefits and Social Security.

Additionally, inform clients about the potential for “grandfathering” if marriage rights are rolled back—where previously married couples may retain certain protections. Stress that a prenuptial agreement is prudent for any couple, LGBTQ+ or otherwise, as it allows them to define terms themselves rather than relying on default state laws that may not reflect their specific needs.

Marriage can bring valuable legal protections, but comprehensive estate planning should remain the foundation of their legal security. Encourage clients to see estate planning as a proactive approach to safeguard their future, with or without marriage.
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Guide LGBTQ+ Parents on Confirmatory Adoptions and Parental Rights

Advising LGBTQ+ clients on parental rights is crucial, especially given the legal uncertainties surrounding LGBTQ+ family planning. A parent’s name appearing on a birth certificate does not confer parental rights—only an adoption decree does. Emphasize the importance of confirmatory adoptions to secure full legal rights as a parent.

Moreover, recommend that they execute pre-birth and post-birth guardianship documents to ensure the non-biological parent has legal authority before the adoption is finalized. In cases where the parent is also the health care agent for their spouse, a pre-birth guardianship document can empower them to make medical decisions impacting the unborn child, providing security in case of complications during childbirth.

Estate planning documents like a last will and testament also allow clients to designate guardians for their children, ensuring their family structure remains protected if the unexpected happens.
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Inform Clients of the Importance of Accurate Identification Documents

For transgender, nonbinary, and gender-diverse clients, accurate identification documents are essential not only for affirming their identity but also for ensuring their safety in daily interactions and travel.

While I recommend clients pursue a name change as soon as possible, I also advise them to weigh the potential risks of selecting “X” as their gender marker on official documents. This designation, while valid and affirming, may not be recognized universally and could expose clients to discrimination or unnecessary scrutiny, especially in less inclusive or restrictive regions. Encourage clients to think critically about which gender marker offers the best balance between personal expression and practical safety.

Court-ordered name changes should be a priority for clients who have not yet updated their documents. With a court decree, clients can easily modify other essential records, including Social Security, driver’s licenses, and birth certificates.
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Emphasize the Importance of Self-Care in Difficult Times

While legal protections are critical, lawyers should also recognize the emotional toll these uncertain times may have on LGBTQ+ clients. Encourage them to prioritize self-care practices that can provide resilience and peace of mind. Remind clients that maintaining a strong support network, whether through friends, family, or chosen family, can be grounding. Suggest activities like setting news boundaries, engaging in mindfulness, and connecting with community groups or advocacy efforts as ways to cope and stay empowered.

In these uncertain times, thoughtful, proactive planning can offer LGBTQ+ clients the peace of mind they deserve. As their attorney, you play a crucial role in not only educating them about their rights but also empowering them to make informed decisions that safeguard their lives and relationships. By encouraging a comprehensive approach to estate planning, guiding them through marriage and parental considerations, and emphasizing the importance of updated identification documents, you are helping them build a strong, protective foundation. Remind clients that while political climates may change, their ability to secure their legacy and protect their loved ones remains firmly within their reach. Lastly, remind them of their resilience. LGBTQ+ individuals have overcome significant challenges, from the AIDS crisis to marriage equality battles, through empathy, compassion and strength. Reinforce that by being proactive and prepared, they are upholding this legacy of resilience. Legal protections are tools for empowerment, and through both legal strategy and compassionate guidance, LGBTQ+ clients can face the future with confidence.

Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBTQ+ law, business law, real estate law and civil rights. Her website is www.giampololaw.com, She maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at [email protected].