A guide to legal rights for older people who are LGBTQ+

“The prospect of going into care is a terrifying one for some gay men and women, because they know friends so badly treated by residents and staff that they have gone back into the closet.”

Channel 4 News 17th June 2014

Unfortunately, very little appears to have changed in the 5 years since this report.

 “Staying out of the closet”

A guide to legal rights for older people who are LGBT+

 We all want to live where we can be ourselves and don’t feel the need to hide our sexuality.  A place where we can feel accepted for who we are and not resented for who we are not.  For those who prefer not to discuss their sexuality, haven’t acclimatised to Civil Partnerships and Same Sex Marriage or face prejudice and discrimination because of their sexual orientation, the law can be a great help.  Here are some examples:

Garner & Hancock Advisors are specialist in this area

Lasting Powers of Attorney (“LPA”)

It’s possible to make Powers of Attorney to cover the management of your finances and, your health and welfare.   They are separate documents and enable you to appoint whomever you choose to make decisions about your affairs.

Why is this important?

The Attorney has legal recognition.  This can be particularly important when it comes to speaking to a life partner’s GP about care, especially towards the end of life.   There is no requirement to reveal their relationship with the Donor (the person making the LPA) if they prefer not to. They can carry out all their dealings with medical and social services in their capacity of Attorney if that is preferred. Equally they can have their financial affairs managed by someone they trust.

Making a will

In the absence of a will, property passes either to a spouse (same sex or otherwise) or registered civil partner or to close biological relatives – so anyone dying without a spouse, civil partner or children will leave their estate to pass to relatives rather than a life partner.   Making a will enables you to choose who will inherit your estate and, who can organise your funeral.

Why is this important?

There is little law regarding the right to bury a deceased person.  In the absence of a will, biological relatives may be able to establish a stronger claim to the body than a life partner.  By making a will, you can put a life partner in charge.  Again they can just be ‘the Executor.’

Inheritance (Provision for family and dependants) Act  1975

Where there is no will a claim can be made for financial provision from a deceased’s estate. The claim can be made by anyone who has lived in the same household as the deceased for at least two years as their ‘husband or wife’ (this term would normally include a life partner), ending immediately before their death.

Why is this important?

In a situation where there is no will, this act enables a life partner to make a claim against the estate.  This can be important if the property in which the partners lived was registered in the sole name of the deceased.   Even where a will has been made which makes no provision or inadequate provision for a life partner, a claim can still be made.

Constructive trusts

A property may be registered in the name of one partner but be treated as belonging to both of them.  In such circumstances, the surviving life partner can look to make a claim for part or all of the house, notwithstanding what any will or intestacy may provide for.

Why is this important

The law of trusts is based on fairness.  Where parties have treated a property as a joint asset the law will often recognise this.

S.1 The Mental Capacity Act 2005

Apart from the presumption of mental capacity, any decision made on behalf of an individual lacking mental capacity must always be made in their best interests.

Why is this important?

Any doctor, nurse or social worker must comply with this Act and not involving a life partner in the decision-making process when their life partner has dementia or other mental incapacity will, in all likelihood, breach it.

The Equality Act 2010

It is unlawful to discriminate either directly or indirectly against anyone on, amongst other things, their age, gender reassignment and sexual orientation.  The effect of this legislation is wide ranging.

Why is this important?

Whether we are heterosexual or LGBT we are all entitled to the same treatment, goods and services.

Civil Partnership Act 2004 and the Marriage (Same Sex Couples) Act 2013

These place people who are Lesbian, Gay, Bisexual or Transgender in the same legal and tax position as heterosexual couples who have married.

Why is this important?

It brings with it all the benefits and burdens of ‘getting hitched’.  The Inheritance tax situation is beneficial for those who are married or in a civil partnership.

 

This is general advice and is meant for information purposes only.  It should not be relied upon and specific advice should be obtained on any legal problem