Jan 14th, 2021
Feb 4th, 2019
By Zachary Lisak
Proper estate and incapacity planning are important for people from all walks of life, however there are often important nuances to understand for members of different communities. Below, I discuss certain considerations for individuals in the LGBTQ community.
Where there are difficult family relations due to the lack of acceptance of the LGBTQ individual by their children, parents and siblings, it is important for the LGBTQ individual to put an incapacity planning in place. When a person who has done no incapacity planning is incapable of making health care decisions, the law provides that their spouse is given priority to make those decisions on their behalf. If the individual has no spouse, a close relative or a person with a special relationship to the individual are given the right to make the decisions. The close relatives and the person with a special interest, such as an LGBTQ partner, are technically on the same footing under the law but the close relatives may have many voices whereas an LGBTQ partner only has one. For the partner of an incapable LGBTQ individual to be assured the right to make healthcare decisions, they must be named as ”mandatary to the person” in a Protection Mandate. Without such an expression of wishes, there is a considerable risk that the partner will be excluded from the care of the individual if a related family member applies to the court to obtain control of their LGBTQ relative. In addition, if the LGBTQ individual wishes for their financial decisions to be made by their partner without interference from family members they must also name their partner as “mandatary to the assets” in their Protection Mandate.
Use of Assets and Income
Only in a Protection Mandate can it be specified that your income and assets can be used for the benefit of another. If, on incapacity, an LGBTQ individual wishes to allow their income or their home to be used for the benefit of their partner, it must be set out in the Protection Mandate. Without this expression in a legal document, the partner will not have access to the finances or the assets of the incapacitated partner for their own use. When the incapacitated partner is the breadwinner of the family, the financial consequences could be grave.
All persons are better expressing their wishes concerning who will care for them in a Protection Mandate but this expression takes on special significance for an LGBTQ individual and in particular for a transgender individual. When it comes to medical care, transgender individuals need to ensure that they appoint a strong individual who embraces their identity to advocate for them in the medical community. In a recent report in the United States over 50% of transgendered individuals reported that they had to educate their medical care providers about transgender care, 19% reported that they were refused medical care and 28% indicated that they experienced verbal abuse. The careful selection of the right person in a Protection Mandate will help to ensure that a transgender person will receive the care that they are entitled to.
Necessity of planning to protect partners
Without a will, the law provides that assets devolve to spouses and descendants and in the default of descendants, siblings, nieces and nephews in certain proportions. Given that many LGBTQ individuals have common-law partners that are not legally recognized in Quebec succession laws it becomes very important for an LGBTQ individual to specify their wishes in a last will and testament. Without such an expression of wishes the partner of an LGBTQ individual will not inherit in Quebec.
Necessity of planning to protect children
To make matters worse, the legal definition of descendant does not include many young ones that LGBTQ individuals consider to be their children. Under the law, a descendant is a child who is connected by blood or who is legally adopted. Many LGBTQ families include children that are born of a surrogacy arrangement where only one or neither of the partners is actually connected by blood. In some cases the birth parents are still in the picture while the LGBTQ couple is raising the children as their own. It is clear that society has evolved significantly beyond the traditional view of descendants and family but the law has not caught up. Currently the only way to protect the children of LGBTQ individuals with an inheritance is to carefully name them in a will. LGBTQ individuals should not rely on intestacy rules or the legal definition of children to provide for their young ones in the event of their death. As the family expands the will should be revisited to ensure that no child is left out inadvertently. Equally as important, for LGBTQ couples raising children where only one partner is the legal parent of the child, a designation should be made in a last will and testament indicating who should become the guardian (or “tutor” in Quebec) of the children. Although the court will ultimately decide the guardianship of the child, such a designation provides a clear indication as to the parent’s preference and in most cases is respected by the court. This goes far to prevent a scenario where the family of the deceased parent attempts to take the child away from the surviving LGBTQ partner.
Additionally, a warning should go out to the grandparents of these children because the grandparents cannot simply rely on the legal definition of grandchildren in their will if they want to ensure that they leave property to those they consider as family . In some jurisdictions the definition of family has expanded but Quebec has yet to follow suit and in the meantime succession planning with a well drafted will is the only way to ensure that the final wishes of an LGBTQ individual are enforced.
It should be noted that there are some pre-emptive opportunities to address some of the issues discussed above. For instance, in Canada, marriage is available to all couples and is not restricted to opposite-sex couples. An LGBTQ couple that wishes to get married will be able to avail themselves of the various rights and protections spouses are afforded under the law. In addition, for LGBTQ couples raising children where one partner is not legally affiliated to the child, adoption will provide that partner with the same rights as a natural parent. These are personal decisions to be made by the couple, and these options are not for everybody, but they should be considered by LGBTQ couples, particularly when their families are not supportive.
While proper will and estate planning is important for everybody, individuals in the LGBTQ community can be more vulnerable than others because they may not have support from their families. Fortunately, in Quebec, an individual has considerable control over their destiny, provided that they use the tools available to them. The tools mentioned above can be tailored to the particular circumstances of each individual or couple and can provide the peace of mind that comes with the knowledge that one’s partner and children are protected.
 This is demonstrated by a report produced by a survey of over 7,000 transgender individuals in the United States by the National Centre for Transgender Equality and National Gay and Lesbian Task Force:2010. Online <http://www.thetaskforce.org/static_html/downloads/resources_and_tools/ntds_report_on_health.pdf>
This publication is of a general nature, is as of the date indicated and is not intended to constitute an opinion or legal advice. The facts and circumstances of your particular situation should be specifically identified and addressed before appropriate legal advice may be given.