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Senior Planning

LGBTQ+ Elders Face Unique Planning Challenges


By Julie A. Dialessi-Lafley, Esq.


You have heard it and read it over and over again: everyone, regardless of their level of wealth, should have an estate plan. However, for LGBTQ+ elders, it may be even more critical to have an estate plan in place due to the challenges faced by many in the community.

Despite the fact that same-sex marriages are legally recognized in all 50 states, only 54% of same-sex couples are married. Not only are there still challenges for married same-sex couples, the high percentage of non-married couples also necessitates planning. While the government can create a law recognizing these marriages, there are organizations, businesses, and people who do not acknowledge these couples. The result is challenges for couples who simply want equality, as well as to provide and plan for their loved ones and chosen family.

Julie A. Dialessi-Lafley

Julie A. Dialessi-Lafley

“Making sure planning is in place to provide for the needs of the surviving spouse, partner, and other family and friends is crucial, as the laws in the absence of planning may not provide for those loved ones as you would want.”

Planning for retirement is both a financial goal as well as a lifestyle decision for LGBTQ+ elders. Making sure planning is in place to provide for the needs of the surviving spouse, partner, and other family and friends is crucial, as the laws in the absence of planning may not provide for those loved ones as you would want.

Additionally, social isolation can really creep up and become a serious problem to overcome. The question of where to retire has become overwhelming, as relocation brings with it a need to find an area that provides for the social inclusion for these elders as well as financial stability, reasonable cost of living, and lifestyle needs.

Within the U.S., about 80% of long-term care for older people is provided by family members, such as spouses, children, and other relatives. LGBTQ+ elders are only half as likely as their heterosexual counterparts to have close family to lean on or children to help. Simply put, folks who are part of the LGBTQ+ community are less likely to be married, they may have children where only one partner is the biological parent, and there is a high incidence of alienation from non-accepting family members.

Planning how long-term-care medical needs will be paid and who will act as the healthcare proxy/advocate for the LGBTQ+ elder is crucial, as many LGBTQ+ elders need to make sure they have an appropriate person to assist in making decisions about their care, as well as being concerned about harassment and hostility in facilities that serve the aging population. These folks often do not access aging services out of fear of hostile and harassing treatment. Few facilities are prepared to address insensitivity or discrimination aimed at LGBTQ+ elders by staff or other older people. Proper planning and memorializing those wishes in an estate plan can allow the elder person to age with the dignity and respect they deserve.

For non-married partners, planning is extremely important because, under the law, a partner is not going to have the standard rights to healthcare information and the ability to make healthcare decisions on behalf of their partner. A partner will not be able to access bank accounts if they are not in joint names and they are not able to make any and all decisions on behalf of their partner. Unmarried partners are not entitled to any inheritance in the absence of a will, trust, or proper planning.

Regardless of marital status, end-of-life decisions, the question of cremation versus burial, and any memorial arrangements should be documented to make sure your wishes are carried out as, again, both non-married and married partners may face significant challenges in carrying out your wishes in the absence of documentation.

In LGBTQ+ couples with children, only one parent might be the biological parent, or neither might be. They might have used an egg or sperm donor to conceive, or a surrogate to carry the child. There are varying rules across states about parental rights, but from a legal perspective, the biological parent is the one with the legal rights, barring any other court documentation. Even a birth certificate with both parents’ names on it may not be enough.

A last will and testament lays out who your assets should go to after you die. It also allows you to name a guardian for your minor children. It can help your family avoid disputes that might arise if there is not a plan in place or if it is not clearly stated. Additionally, trusts can be used to plan where assets go after you die and also avoid probate of your estate. This can be a cost-effective way to reduce conflict in the future and avoid claims against the elder’s estate from family who have been intentionally omitted from the planning.

As a result of what the community describes as continued discrimination and lack of inclusion, elders need to ensure that they have in place, at minimum, the appropriate documents, such as durable power of attorney, healthcare proxy; will, trusts (if warranted), and end-of-life directives in order to ensure their wishes can be carried out and their needs will be met in the event of an illness or death.

Estate planning can help to navigate through an increasingly complex legal system, and proper planning can protect your loved ones when they will need it most.


Julie Dialessi-Lafley is a shareholder with Bacon Wilson whose practice areas include estate planning and elder law, domestic relations and family law, and business and corporate law; (413) 781-0560; [email protected]


Parental Pitfalls

By Julie Dick, Esq.


Julie Dick

Julie Dick

Laws that govern familial rights and responsibilities are not always intuitively related to the continual social evolution of what it means to be a family. Many do not consider the legal realities of their family structure until a moment of crisis, and a lack of planning can cause difficult legal situations down the line.

When laws governing parentage were written, they contemplated families in which there was a biological mother and a biological father, and marriage was heavily incentivized. Since then, family structures and paths to existence have diversified. The law and society have both recognized a significant growth of LGBTQ+ visibility and rights, assisted reproductive technology has become increasingly accessible, and more children are being born to unmarried parents.

During the fight for marriage equality in the U.S., the importance of marriage to family building and parentage was one of the central talking points of the movement, and it is no wonder why. Marriage is often a social, religious, and cultural event, but it is also a legal contract that confers many protections, benefits, and obligations unavailable to unmarried people. From the right to access a spouse’s health insurance to the availability of some forms of family leave to financially significant tax and estate-planning benefits — the legal and financial impacts of marriage are broad. Until recently, those benefits, and the benefits associated with parentage, were categorically unavailable to LGBTQ+ families.

In Massachusetts, the automatic rights and responsibilities accorded to individuals within a family are still largely dependent on whether the birth parent is married. If a married person gives birth to a child, the second party to that marriage is automatically presumed to be the second parent. That parentage comes with obligations, but also rights, including a presumption of shared legal and physical custody (i.e., the right to make decisions on behalf of the minor child and to have that child live with them).

“During the fight for marriage equality in the U.S., the importance of marriage to family building and parentage was one of the central talking points of the movement, and it is no wonder why.”

Massachusetts was the very first U.S. state to allow marriage equality. A 2004 case, Goodridge v. Department of Public Health, interpreted civil marriage to mean “the voluntary union of two persons as spouses, to the exclusion of all others,” recognizing that doing so would advance the state’s interests in “providing a stable setting for childrearing.”

The decision directs the reader of Massachusetts marriage laws to interpret terms like ‘husband’ and ‘wife’ in a gender-neutral way. In 2015, marriage equality became available nationwide with a landmark case, Obergefell v. Hodges, in which the Supreme Court’s majority opinion boldly stated that “no union is more profound than marriage,” recognizing that it is so essential, in part, because it “safeguards children and families.” By accessing marriage, LGBTQ+ families can now access those automatic presumptions of parentage available to married people.


Sticky Situations

What if a child is born to an unmarried parent? In Massachusetts, the law views this family very differently. When the birth parent is unmarried, they have automatic sole legal and physical custody of the child. A second parent can establish their legal parentage by signing an acknowledgment of parentage or by asking a court to determine they are a parent. It was not until a 2016 case, Partanen v. Gallagher, that parents who were not the birth parent and not biologically related to the child (often the case for LGBTQ+ parents) could establish parentage under this law.

However, establishing parentage here in Massachusetts through either of these avenues is not the same as safeguarding parentage across jurisdictions, or across time in a changing legal landscape. Laws governing marriage and parentage are not necessarily entitled to comity — mutual respect and enforcement — between states or countries. A marriage or birth certificate that is recognized as valid in Massachusetts may not be recognized as valid in another jurisdiction. Parentage is only legally meaningful so long as the jurisdiction considering it agrees to give it meaning.

Future disputes with a co-parent and international travel pose two common points of risk when it comes to parentage.

Imagine you are in a committed relationship but haven’t gotten married. You and your partner decide to have a child together, and with the help of assisted reproductive technology, your partner carries a child. You present that child to the world and your family as your own and live together as a family raising the child. Eventually, your relationship breaks down, and your former partner now claims you are not a parent of your child and should not be awarded custody or parenting time. That was the scenario in Partanen v. Gallagher, where the ensuing argument involved years of contested litigation.

Occasionally, birth parents (married or not) have tried to take advantage of another state’s less LGBTQ+-friendly laws. By filing for divorce or custody in a state where the laws are not as inclusive, a birth parent may seek to interrupt the other’s legal parentage or gain an upper hand in custody or parenting time determinations.

In one infamous case, a birth parent residing in Vermont was dissatisfied with the state’s orders recognizing her former partner’s parentage of their child and filed a new case in a Virginia court, which denied the lesbian second parent’s legal parentage altogether. The resulting multi-state legal proceedings lasted years and involved multiple appeals. Ultimately, the birth parent kidnapped the child to Nicaragua and successfully remained in hiding until the child was 18.

The risks the accompany international travel can be even more surprising. Picture this: you’re on vacation with your family, and your child — born to your spouse during your marriage using reproductive technology — falls ill. Will the hospital allow you in the room? Give you information? Let you make vital medical decisions? Let you take your child home? “It depends” is hardly a comforting answer.


Adoption as an Answer

For those wishing to decrease that uncertainty, adoption may be the answer. A 1993 case, Adoption of Tammy, confirmed that an existing legal parent and their co-parent can together adopt their own child to secure their parentage in Massachusetts and across jurisdictions.

Sometimes called a confirmatory adoption, marital adoption, or second-parent adoption, this was one of the first tools available for LGBTQ+ families to establish parentage of their children and remains the most secure. Unlike a marriage or a birth certificate, an adoption is entitled to comity across jurisdictions. In Massachusetts, it is a widely available legal proceeding which can stand alone or in addition to an acknowledgement of parentage or marriage to secure a non-birthing parent’s parentage.

In an internationally varied and ever-evolving legal landscape, consider utilizing the law to protect your family so you know what to expect when the unexpected happens.


Julie Dick is an attorney at Bulkley Richardson, where she leads the firm’s family-law practice.

Health Care

Cultural Shift

Michael Taylor and Teresa Weybrew say Christopher Heights of Northampton is striving to be ‘the place’ for LGBTQ seniors.

The average age of a Christopher Heights resident is somewhere in the 80s, says Teresa Weybrew, director of Marketing & Admissions at the assisted-living community in Northampton.

That’s an age group that grew up in a less-open time when it came to gender identity and sexual orientation — and members of that generation often still feel anxiety around their peers. But what’s more surprising, Weybrew said, is that, for many, that fear of being openly themselves is heightened when they move into senior-living communities.

“There’s a statistic that, of people who have come out and lived an authentic life in their sexual orientation, when they come into assisted living or skilled nursing, 86% go back in the closet out of fear,” she told BusinessWest. “They’re in an environment where they don’t know how safe they are because they have some memory loss or physical ailments — they’re already vulnerable because they’re not quite physically themselves — and then they have this added layer of anxiety. We want to help them understand that we get it, and they’re going to be OK here.”

Christopher Heights recently hosted a workshop for staff, residents, and public on LGBTQ (lesbian, gay, bisexual, transgender, queer) cultural competency in the senior-living setting. Presented by Rainbow Elders, an arm of LifePath in Greenfield, the event was also part of the process of being credentialed by SAGE, the nation’s largest advocacy organization for LGBTQ elders.

“I want our community to be accepting of other residents,” said Michael Taylor, the facility’s executive director, “but we also want employees to feel comfortable and respected. I see this as making it a welcoming place for both.”

Not all communities are. Angela Houghton of AARP Research writes that three out of four adults age 45 and older who are lesbian, gay, bisexual, or transgender say they are concerned about having enough support from family and friends as they age. Many are also worried about how they will be treated in long-term-care facilities and want specific LGBTQ services for older adults.

“I’ve been working with SAGE in a conversation for a couple months,” Weybrew added. “But as I got into it, I realized this isn’t just about having a plaque on the wall. We want to live and breathe and walk the talk and really be the facility that does the work and where people can come in and say, ‘yeah, they really do know what they’re doing, and I feel welcome,’ whether it be an employee or someone who comes to live here.”

Subtle Spectrum

For the recent workshop, Rainbow Elders brought in four people — representing gay, lesbian, bisexual, and transgender perspectives — to talk about gender, identity, orientation, and how none of those categories are black and white, but rather a spectrum.

“It was good educational background. Each talked about their personal story,” Taylor said, noting that Christopher Heights already employs a handful of LGBTQ individuals and aims to create a more welcoming environment for staff and residents alike — which is why hearing these perspectives shared aloud is important.

The demographics speak to the importance of this issue. By 2030, the population of American adults ages 65 or older is expected to surpass 70 million, according the U.S. Census Bureau. The National Gay and Lesbian Task Force puts the number of LGBTQ seniors in the U.S. at 3 million and notes that this figure is expected to double by 2030.

However, LGBTQ seniors frequently report concern over the possibility of encountering discrimination from senior-housing staff or other residents. According to SAGE, 48% of lesbian, gay, or bisexual couples experience “adverse treatment when seeking senior housing,” and transgender elders face such treatment at even higher rates.

Meanwhile, a 2016 report from Justice in Aging notes that 78% of LGBTQ residents in nursing homes, assisted-living facilities, and long-term-care facilities responded ‘no’ or ‘not sure’ when asked if they felt comfortable being open about their sexual orientation or gender identity to facility staff.

Then there are cases like Mary Walsh and Bev Nance, a Missouri couple whose housing application at a local senior-living facility was denied because of a cohabitation policy that defined marriage as between one man and one woman. They sued the facility, but their lawsuit was dismissed by a U.S. district judge in January.

Yes, that’s January 2019, not 1959. Clearly, the work of SAGE and like-minded organizations isn’t done. Cases like this certainly help explain why only 20% of LGBTQ seniors in long-term-care facilities are open about their sexual orientation, according to Justice in Aging.

Yet, attitudes have been shifting — and prejudices hopefully diminishing — over the decades when it comes to this population, and facilities should be welcoming them as an untapped market, notes a report by Sodexo titled “Why ‘LGBTQ-welcoming’ Will Soon Be a Hallmark of the Most Successful Senior-living Communities.”

“Developing a marketing strategy that attracts LGBTQ older adults is the right thing to do,” the report notes. “And it’s good business. Given the opportunity for senior-living operators to advance their growth agenda, developing a strategic plan that attracts and retains LGBTQ older adults and allies is a vital lever to business growth and to improve quality of life.”

To help facilities move in that direction, SAGE launched its credentialing program for retirement communities around the country aiming to create more understanding and resources for these marginalized groups. Its program addresses the specific difficulties LGBTQ older adults face, including abuse, neglect and hurtful comments.

“Most people work with older adults because they have a caring orientation,” said Tim Johnston, director of national projects at SAGE. “We are giving them the tools they need to help older adults feel more comfortable.”

Watch Your Language

In developing a culturally competent and welcoming environment, it is important to address a number of factors, including language, inclusive visuals in company materials, programming, and outreach efforts, according to the Sodexo report.

At Christopher Heights of Northampton, it begins with the application, which used to give only two options for gender — male or female. It may seem like a small thing, but it’s a detail that sets transgender and non-binary individuals on edge right from the start.

“If you’re trans, what do you put?” Weybrew said. “That’s your first exposure to us — and you’re already thinking, ‘all right, they expect me to be a man or a woman,’ when you don’t identify as that.”

She recently asked a resident from the LGBTQ community what might have improved her experience, and she did mention the application form, but she also stressed the importance of respectful communication.

“She said, ‘just ask.’ And we are afraid. We don’t want to offend anyone, and yet, in our fear, we are offending people by not asking them the questions. We want to connect, we need to connect, and that’s what I think this training will offer us — ways to have the conversation. Many people have lived their whole lives feeling either offended or accepted or some awkward in-between. It’s not like we’re going to do something that’s going to shock them.”

Sodexo’s report affirms that idea, noting that “one of the simplest ways to cultivate both understanding and respectful relationships with LGBTQ older adults is through appropriate use of language. Keep in mind, however, that some terms still used by older LGBTQ people may be seen as outdated by younger LGBTQ people. Become familiar with key terminology and pay close attention to how residents use terms and how they refer to themselves and others.”

Indeed, the report continues, “the LGBTQ community is not a monolith. This must be kept in mind when addressing the needs of LGBTQ older adults as well, who have a totally different set of life experiences than younger LGBTQ people. The former grew up in a time that was far less welcoming, when LGBTQ people guarded their sexual orientation and gender identity as a dangerous secret that could cause them to lose their homes, jobs, families, and freedom. They risked being labeled anything from criminal to mentally ill. That generation still carries a lot of this baggage today as they attempt to navigate issues related to housing and healthcare.”

That may be an understatement. SAGE notes that, just a few decades ago, homosexuality was still classifed as a mental illness by the American Psychiatric Assoc., not to mention a crime in some parts of the U.S. Housing, employment, and healthcare discrimination were common. As a result, many LGBTQ seniors remain fearful or distrustful of medical and social-service providers.

Weybrew has assembled an advisory board that will continue to meet regularly going forward and bring in educational opportunities for residents, staff, and the larger community.

“It won’t end. It can’t end,” she told BusinessWest. “We have to keep learning, and we have to say, ‘yes, we see you.’”

She knows she’s already dealing with a vulnerable population. “You’re talking about a potential resident who’s scared because they’re leaving their home of 40 years. Their spouse died, they’re losing their health, and they’re coming to a place where they don’t know us. I know what’s like because I did it with both my parents. Now you add that layer of sexual orientation. We want them to know, ‘yeah, it’s cool to be here because we’re going to treat you right.’

“We’re going to have our issues,” she went on. “We might get some pushback from an 88-year-old who says, ‘God says that’s a sin.’ It’s going to happen. And we’re going to learn how to manage that.”

Not Just Seniors

Senior-living facilities aren’t the only ones recognizing opportunities to boost cultural competency among their staffs. For example, Cooley Dickinson Hospital has been recognized as a 2019 Leader in LGBTQ Healthcare Equality by the Human Rights Commission (HRC), the country’s largest LGBTQ civil-rights organization. CDH is the only hospital in Western Mass. and one of only seven hospitals in the Commonwealth to earn this designation.

Among its efforts, Cooley Dickinson has recruited and trained clinicians who specialize in the care of LGBTQ people; implemented changes to electronic medical records that facilitate the use of the patient’s preferred gender, name, and pronouns; and collaborated with local gender-diverse community members, the Fenway Institute, and researchers from Harvard Medical School on the PATH (Plan and Act for Transgender Health) Project, a study that will inform the expansion of gender-affirming health services in Western Mass.

“This designation affirms Cooley Dickinson’s commitment to providing equitable, inclusive, and affirming care for LGBTQQ patients and their families,” said Cooley Dickinson Health Care President and CEO Joanne Marqusee. “We are proud to receive — for the third consecutive year — this honor and to continue our efforts to ensure that our local LGBTQ community has access to respectful, appropriate care.”

Sure, it’s easier for Northampton-based facilities like Cooley Dickinson and Christopher Heights to make these efforts, which are likely to meet with resistance in less progressive areas of the country. But it’s a start.

“We realize it’s going to be an ongoing process, but we as a company are committed to it,” Taylor said.

Weybrew said Christopher Heights is a corporate sponsor of the Out! for Reel film festival, which focuses on LGBTQ-themed films and recently kicked off its season. “I had a chance to get up and speak. The word is getting out that this is going to be a welcoming place, and it starts with us internally asking, how do we make it that place every day? How do we make people feel comfortable?”

The answer is an evolving one — and begins with asking the right questions of those who have felt marginalized for too long.

Joseph Bednar can be reached at [email protected]