When Lisa Brodoff first started her law career at age 25 working with seniors, her clients often looked over her shoulder to see where the real attorney might be.
Now 56, Brodoff sat in a meeting room at the Capitol Hill Library on Jan. 24 sharing her legal knowledge and expertise with a specific audience: senior members of the GLBT (gay/lesbian/bisexual/transgender) community.
Brodoff, an assistant professor of law at Seattle University, was one of four panelists who encouraged older members of the GLBT community to think ahead and name a final decision-maker in the event of incapacitation or death, especially when it means protecting one’s partner.
“If we don’t make decisions for ourselves in advance, then in many cases, the law decides for us,” Brodoff said. “And you may not like who the law or how the law decides in these events.”
Brodoff was joined by June Krumpotick from Legal Voice, Judi O’Kelley from Lambda Legal and Amy Freeman from Columbia Legal Services. The panel was part of an education series presented by the GLBT Bar Association Foundation of Washington, also known as QLaw Foundation.
Along with legal documents, the panelists also talked abut long-term care, elderly and GLBT abuse, and the difference between state’s laws and federal laws.
“I identify as a lesbian and am really interested in elder care,” said Sharon Hennessy, an attendee who heard about the panel from a University of Washington GLBT e-mail list. “I took care of a parent for 15 years…and I think there is a real gap between GLBT and elderly care resources.”
Within state lines
The discussion started with Brodoff, who walked attendees through powers of attorney for financial and health care decision-making, wills and medical directives.
In the state of Washington, the final health-care decision goes to a person’s spouse or domestic partner in the event that an individual does not have a power of attorney. If there is no registered relationship, the power to make these types of decisions generally falls to legal children, living parents or siblings, in that order.
However, Brodoff emphasized there is no statute that designates a family member as the financial guardian, making financial powers of attorney all the more important.
“I tell my students it’s like appointing a mini-me,” Brodoff said. “You better trust that person with everything you own.”
Other documents, such as last wills and medical directives, specify who should gain possession of one’s estate should someone die and who should have access to medical records or have a say in medical decisions.
O’Kelley, reiterating the importance of legal documents, said that having a domestic partnership does not fix all legal problems.
Washington state recognizes domestic partners and gives them the same rights of a married couple. However, not every state is obliged to do the same.
The Defense of Marriage Act (DOMA), enacted in 1996, prohibits same-sex and domestic partners to claim federal benefits such as Social Security, Medicaid and Medicare. The law specifies that a marriage is a legal union between a man and a woman.
This means other states are at liberty to ignore laws, such as the current Washington state statute, that take great strides to protect domestic partnerships.
Even with recent efforts in the state of Washington to legalize gay marriage, those rights end at the state borders.
This proves to be a problem for couples without proper documentation for things such as powers of attorney and medical directives, who find themselves facing medical emergencies in other states.
“You really need to have them, and the hospital needs to have access to them,” O’Kelley said. “Make sure you have a way to keep those emergency documents with you. Perhaps on one of those little thumb drives, USB drives to your keys.”
In addition to DOMA, Freeman said, federal law also makes it difficult for GLBT couples to access social benefits.
Federal regulations make it difficult for elderly people to qualify for long-term care. For domestic partners, access to their partner’s Social Security is off limits.
Medicaid is even more complicated because of financial eligibility and the complexity of transferring of estate from one person to the other.
There are benefits to remaining single in a GLBT relationship, and there are drawbacks, Freeman explained.
Currently, domestic partners are not assessed together when qualifying for Medicaid; married couples are. This could be good if one person in the relationship has all the money — that wealth does not influence the Medicaid qualifications.
In addition, domestic partners can be paid by the government to act as a primary caregiver for the person on Medicaid. Spouses cannot receive money because they are already expected to care for their partner.
However, domestic partners run into the problem of the government trying to recover money put into an individual’s long-term-care expenses. Domestic partners run the risk of being kicked off the estate, because that is where the government will go to try to recover some of those expenses.
“You want to talk to an attorney who does this stuff every day,” Freeman said. “You want to go to a Medicaid, estate-planning attorney because, if you don’t, you might get the right product in the end, [but] it’s going to cost you a lot.”
Freeman also mentioned that seniors in the GLBT community are just as likely to face elderly abuse as they are discrimination because of their sexual orientation. Generational attitudes and invisibility gaps can heavily influence elderly care, especially if a caregiver is homophobic.
The best safety net
To wrap up the panel, Krumpotick led a question-and-answer session during which the other three panel members answered and clarified topics from the audience.
The take-home message: Plan ahead, have a “bulldog,” as O’Kelley called it, who knows what kind of care you want. Start creating legal documents to protect those interests in older age.
“Documents are probably your best safety net,” O’Kelley said. “Having that in place can really gel with a hospital that this is the right thing to do [for you].”