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Views: Legal Issues Faced By LGBT Seniors
by Ray J. Koenig III, Esq.

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This article is based on testimony provided by the author on July 19, 2005 at a 2005 White House Conference on Aging Pre-Event titled 'Elder Voices: Let Your Stories be Heard,' sponsored by the Chicago Task Force on LGBT Aging, the Chicago Commission on Human Relations, and the National Gay and Lesbian Task Force.

Seniors in the United States face many problems that deserve the attention of our legal system. Some problems are caused by flat-out age discrimination; some are simply an effect of our youth-obsessed culture. Those problems are compounded and made terribly worse when the senior is lesbian, gay, bisexual, or transgendered.

Examples of unique legal situations faced by LGBT seniors are numerous. Here are a few:

Alejandro, a 66-year-old female-to-male transsexual, was evicted from his assisted living facility after other residents at the facility demanded his removal—solely because he is a transsexual.

Sue, a nursing home resident, needs a great deal of assistance with her activities of daily living. The nursing home aides refuse to help her, citing fears related to 'washing the lesbian.'

After losing his partner of 35 years, Jack, a 76-year-old man living in near-poverty conditions, is kicked out of his home by his partner's children. Jack had shared his home with his partner for nearly three decades. The home was always in his partner's name though, simply because they could not afford to hire a lawyer to transfer the home into both names.

LGBT elders face unique problems that loosely fit into three categories: individual discrimination, abuse, and issues caused by the inability to marry one's partner. Discrimination and abuse are problems that can cause a LGBT senior to become isolated and even to go back into the closet. The issues associated with marriage stem from legal rights automatically conferred upon married couples that cannot be privately arranged or contracted for by same-sex couples and, for those rights for which contracts may be made, the high cost of attorneys is the reason many cannot do so.

The first category of problems is discrimination. LGBT seniors face individual discrimination in many contexts. Employment, housing and public assistance are a few of the places where they frequently receive less than equal treatment. It can be difficult enough for seniors to compete in the workforce or to find a nursing home with which they are comfortable, but LGBT seniors must deal with the added problems of overcoming intolerance and discrimination. In addition, public aid programs such as Medicare and Medicaid often refuse to recognize many of the needs of LGBT seniors, such as the refusal to fund the procedures needed certain transgender seniors.

The second category of problems is abuse. Abuse directed against LGBT's in general has been widely documented. Not surprisingly, the same sort of abuse directed at 'younger' LGBT's is directed at LGBT seniors. The abuse may be physical or financial—and frequently both. Unfortunately, many seniors do not have the ability to report or halt the abuse. Even worse, many will endure the abuse for fear of being kicked out of their homes by the abusers.

The third and final category of problems is the issues caused by the inability to marry one's partner. As a result of this inability, LGBT seniors do not enjoy many very important legal rights automatically conferred upon married couples. Those rights include: status as next-of-kin for hospital visits and medical decisions where one partner is too ill to be competent; joint insurance policies for home, auto and health; automatic inheritance in the absence of a will; benefits such as annuities, pension plans, Social Security, and Medicare; spousal exemptions to property tax increases upon the death of one partner who is a co-owner of the home; veterans' discounts on medical care, education, and home loans; joint filing of tax returns; wrongful death benefits for a surviving partner and children; bereavement or sick leave to care for a partner or child; decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her; crime victims' recovery benefits; loss of consortium tort benefits; and social security benefits.

As listed above, LGBT seniors are discriminated against by most tax and inheritance laws. Basic laws of intestacy favor legal spouses and blood relatives. LGBT seniors must therefore take additional steps, at additional cost, to provide for their partners. Further, they must often deal with challenges to their estate plans from the biological relatives of the deceased when those relatives refuse to acknowledge the surviving partner as the decedent's primary beneficiary.

Finally, the inability to marry one's same-sex partner not only is a denial of legal and financial benefits, but also a denial of the emotional and social benefits of marriage. As we age, the emotional and social benefits conferred by marriage may be the most needed.

There are remedies to these problems. They are not easy, but they do exist. First, issues unique to LGBT seniors must be brought to public light. Education must be provided to the people who can most directly impact the lives of LGBT seniors. This list begins with fellow members of the LGBT community, continues with employers, nursing homes, care givers, continues with lawyers, judges and court employees, and ends with legislators.

General public education efforts must be made as well. Federal and state laws will not be changed without near-popular support.

That leads us to the second broad remedy: the passage of laws and ordinances that protect LGBT persons from discrimination based on sexual orientation. Such laws have worked in the past, and continue to work today. A wonderful side effect of such laws is the continuing education of broader segments of the population, including lawyers, judges, and court employees.

The third remedy is more specific—and a greater challenge: providing the equal opportunity to marry. Such equality would alleviate many of the problems that LGBT seniors currently encounter. Instead of having to arrange or contract for just some of the legal and economic benefits of marriage, the right to marry would put LGBT senior couples on equal footing with the rest of the population.

The problems encountered by LGBT seniors are many and each is serious. However, I do not believe the problems to be insurmountable. The brief history of the LGBT movement toward legal equality is filled with stunning victories. As the out LGBT population ages, I expect that LGBT seniors will achieve similarly stunning victories over the unique set of problems which currently exist.

Ray J. Koenig III, a Senior Associate with Peck, Bloom, Austriaco & Mitchell, LLC, practices in the areas of elder law, probate litigation, trust litigation, fiduciary litigation, planning, and estate administration, with an emphasis on will, trust, guardianship, and advance directive contests. Koenig has also been appointed Special Assistant Attorney General by Illinois Attorney General Lisa Madigan. He has conducted seminars for the Chicago Bar Association and community organizations and has been a presenter at City of Chicago Department on Aging workshops. Koenig serves as an appointed Member of the Council for the Trusts & Estates Section of the Illinois State Bar Association, as a committee Vice Chair in the Real Property, Probate and Trust Section of the American Bar Association, and as a member of the Lesbian and Gay Bar Association of Chicago. Koenig served on a task force formed by the Commissioner of the City of Chicago Department on Aging to develop and draft legislation to significantly revise the Illinois Elder Abuse and Neglect Act. Koenig was also named by Illinois Gov. Rod Blagojevich as the governor's alternate delegate to the 2005 White House Conference on Aging.

Koenig has authored numerous articles on topics within his areas of practice and co-authored a chapter on the legal and governmental responses to domestic elder abuse for the Clinics in Geriatric Medicine series of books.

Koenig proudly serves as a member of Chicago Ald. Tom Tunney's Senior Advisory Council and as a member of the Lake View East Chamber of Commerce. Finally, Mr. Koenig serves as a member of the Illinois Coalition on Mental Health and Aging, Northern Region as well as the Chicago Area Task Force on LGBT Aging. Koenig is involved with charities, including Heartland Alliance for Human Needs and Human Rights. Koenig is the founding vice president of the Heartland Alliance Junior Board, former president of the Junior Board, former member of the Board of Directors, and is a current member of the President's Council. Koenig is also a volunteer member of the Center on Halsted's Legal Referral program as well as a proud supporter of Lambda Legal, Chicago House and the Sargent Shriver National Center on Poverty Law , as well as other local and national non-profit organizations.

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