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.

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.