Elder law practitioners should be aware of the special circumstances that may impact the lives of their LGBT2SQ clients as they age, as these circumstances will have a direct impact on how legal practitioners may want to advise their clients in planning for incapacity or death.
TERMINOLOGY
In order to understand how to serve this community, one should be familiar with the terminology used in this article.
“LGBT2SQ” is an acronym for lesbian, gay, bisexual, transgender, Two-Spirit, queer and other members of a sexual orientation and gender identity minority communty.[1]
“Chosen Family” refers to a group of people that someone feels emotionally connected to and considers to be family regardless of biology. LGBT2SQ folk may have had to choose their family after being shunned by their biological family because of their sexual orientation or gender identity.[2]
“In the Closet” means to conceal that one is not heterosexual.[3]
HISTORY & CONTEXT
It is important to keep in mind that it was a criminal offense under sodomy and gross indecency laws to be LGBT2SQ in Canada until The Criminal Law Amendment Act in 1969.[4] Sodomy between men was considered so dangerous it was punishable by deah until 1869.[5] It took time and a great deal of lobbying to move from decriminalization towards legalization. Same-sex marriage was legallized federally by the Civil Marriage Act in Canada in 2005.[6]
Even though LGBT2SQ individuals are much more accepted by society today than they were even 50 years ago, many in the community are still discriminated against and are often very wary of identifying themselves as LGBT2SQ to strangers.
This context is important for serving LGBT2SQ clients because older adults who experienced prejudice or injustice due to their sexual orientation or gender identity would not have seen societal change until much later into their adulthood. The history of discrimination against the LGBT2SQ community, including the trauma involved with the AIDS crisis, would be well engrained into the memory of these individuals. Many older adults in the LGBT2SQ demographic have chosen not to get married or are in relationships that cannot be classified as common law. This may leave the most important and trusted person in their life without crucial decision making power under the law. While much of the research in this area is derived from populations in the United States, the history of abuse and general trends within the population are comparable to a Canadian context.
ELDER ABUSE
It is well established that LGBT2SQ folks are at an increased risk of experiencing elder abuse. LGBT2SQ older adults are significantly more likely to live alone, to be isolated and lonely, and to have previously experienced abuse.[7] They are more likely to experience worsening mental and physical health compared to the general population.[8] LGBT2SQ folks are two to three times as likely to struggle with depression or have a substance use disorder.[9] On the opposite end of that spectrum, they are less likely to have a supportive family, including children, who are often relied upon as a source of caretaking later in life. Often, LGBT2SQ folks are hesitant to seek help or disclose elder abuse in fear of retribution. Additionally, they have to grapple with the necessity of disclosing their sexual orientation or gender identity in order to report the abuse and may fear the repercussions of doing so.
“LONG-TERM CLOSET”
In the LGBT2SQ community, long-term care homes are colloquially referred to as the long-term closet. Many LGBT2SQ folk who are able to keep their identity hidden when living in long-term care or retirement residences, will do so out of fear of abuse and poor treatment as they age and are unable to protect themselves.[10] In a study of 23 LGBT2SQ identified individuals between 57 and 78 years of age in Canada, one of the most prevalent concerns they had when considering “end-of-life” care was a fear of being forced back in the closet.[11]
LGBT2SQ indivuduals face discrimination and abuse in long-term care, not just from the staff, but from the other residents. Summarized by Lezlie Lee Kham, 64 in a CBC interview:
“We worry about actual physical harm happening to us. Not only from staff, but from other residents, because remember, those straight people who were harassing us and beating us back then are now our ages too, right? Now we are the same age in long-term facilities together. That kind of hatred doesn’t just disappear.”[12]
For those who are unable to hide their identity, such as non-binary folk, there is no choice, and this can be especially difficult.
LEGISLATIVE FRAMEWORK
One of the major issues facing the LGBT2SQ community is the emphasis on biological families under the law. For the reasons outlined above, LGBT2SQ individuals may prefer the presence of non-biological or Chosen Family support near the end of their life.[13]
When someone becomes incapable of making personal care or property related decisions, the Substitute Decisions Act sets out a hierarchy of who may apply to become a guardian; this hierarchy prefers spouses and partners, then blood relatives.[14] In case of an emergency, hospitals or emergency responders often call whomever they can reach that is family, searching for a next of kin. This may be the last person the individual experiencing the emergency may want making decisions for them.
It is therefore especially important for LGBT2SQ individuals to name a Power of Attorney whose decision making will come before their biological family. It was suggested by Heather Hay at Elder Abuse Prevention Muskoka that LGBT2SQ individuals carry on their person at all times, a card that lists an “in case of emergency” contact stating the name and contact information of their named Power of Attorney for all decision making should they become incapable.[15] This may aid in signaling to health care workers that the person’s biological family is not the preferred contact in case of emergency. This issue can be of paramount importance to LGBT2SQ individuals. There are examples of couples who have been together for over 50 years being separated by their biological family exercising decision making power to prevent them from seeing each other.[16]
LGBT2SQ clients may need more detailed Powers of Attorney than elder law practitioners are used to. For example, if someone wishes to continue hormone replacement therapy even if they become incapable, that should be included as an express clause in a Power of Attorney. Lawyers will often advise clients that they should discuss their health care and financial plan wishes with their chosen Power of Attorney and that advice is even more important for LGBT2SQ clients.
Similarly, under the Succession Law Reform Act, and the Estates Act, the law prioritizes marriage and biological family.[17] The role of an estate trustee encompases an overarching power over the remains and funeral of the deceased. This could negatively impact LGBT2SQ individuals. For example, someone who is transgendered, for whom a chosen name and gender identiy is of paramount importantance, may wish to ensure that when they die they are burried under their chosen name and gender identiy. Someone in a same sex relationhsip may be concerned that their partner may be barred from their funeral by family who they have not had contact with for years.[18] It is especially critical that LGBT2SQ individuals properly document their choice of estate representative and list several alternatives.
There is no recognition in Canada at this time of non-monogamous relationships which may also play a role in estate planning decisions for the LGBT2SQ community.
TAKEAWAY
The reality is that LGBT2SQ individuals face an intersectionality of abuse due to sexual orientation and gender identity, as well as elder abuse. It is this intersectionality that we, as elder law practitioners, have an obligation to try and be aware of and screen for. LGBT2SQ clients may not identify themselves as such when speaking with a lawyer. It is important to arrange your practice in a way that encourages honesty and trust. Move forward with kindness and without judgment to allow for LGBT2SQ safe space to plan with you.
Thank you to the Ontario Bar Association for publishing our article. To see it on their website go to: https://www.oba.org/Sections/Elder-Law/Articles/Articles-2021/April-2021/Considerations-for-serving-LGBT2SQ-Clients-as-They