Taking PRIDE in Your Estate Planning

• Austin
  Leask

  Austin
  Leask

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An Introduction to Estate Planning Considerations for Queer and Trans Individuals in Alberta

Estate planning is more than just paperwork—it’s a form of personal advocacy. For many people, their first encounter with estate planning is watching their parents or grandparents prepare for illness, incapacity, or the end of life. Knowing the questions to ask and what type of information to provide to an estate lawyer is manageable when you have access to the institutional knowledge of your elders. But that presumption—that everyone has access to these examples—can’t be taken for granted. Systemic and social barriers, including the AIDS crisis, have reduced the number of queer and trans elders in our communities; creating barriers to accessing institutional knowledge of the intersection of estate documents with gender identity and sexual orientation. For many queer and trans individuals, they may be the first in their family to consider this issue. This blog post is a starting point for queer and trans people who are looking to advocate for themselves and their loved ones this Pride month.

Choosing the Right People

Deciding who will carry out your wishes is likely the most important part of estate planning. If you lose capacity without a enduring power of attorney or personal directive, the decision-making power may fall to a close relative. This can be deeply distressing if those family members do not support or respect your identity. For queer and trans individuals who are estranged from or cautious about involving biological family, it’s critical to legally appoint trusted individuals—partners, close friends, or chosen family—to manage your affairs. Selecting someone who already understands and respects your wishes regarding healthcare and finances could be a better selection than someone chosen by the courts or a healthcare provider.

Make your Wishes Known

Even after selecting the right people, a lack of clarity or direction may prevent your wishes from being honoured. Let’s take the example of losing capacity due to Alzheimer’s disease: your personal directive may make it clear that, should you lose capacity, you wish to be placed in a care home. Ideally, the person you selected to make the arrangements of your care will pick an organization that is prepared to support your needs. But this isn’t a guarantee, and not every person will be aware of or consider the specific risks facing queer and trans people in care. For trans individuals, explicitly explaining the gender affirming care you wish to receive or the type of community you are seeking in a care facility are just a few examples of the specific directions you can put in your estate documents.

Be Clear About the Nature of Your Relationship

Relationships come in all shapes and sizes. Being specific about the nature of your relationships, particularly when they may not align with the heteronormative archetype, is important to ensure that your loved ones are properly cared for upon your death. It also serves an important function of reducing disputes over your wishes. In the context of a will, identifying your relationships and making clear explanations for why or why not a party should receive a portion of your estate helps your executor administer your estate. It also helps the court navigate what to do if someone challenges your will.

For example, I have friends who are asexual and aromantic who view their relationship to be akin to a deep friendship. They do not cohabitate or have an Adult Interdependent Partner Agreement, but they are clear that in the event of one of their deaths, they wish for their estate to go to the other. Their estate documents emphasize what the relationship means to each of them. By having a will that is tailored to their circumstances, they haven’t left it up to the courts to categorize or define the relationship.

Take-Aways

Taking the time to think about death and incapacitation and making your will, enduring power of attorney, and personal directive is a form of advocacy for yourself and your loved ones. No-one will understand your wishes and desires as deeply as you, but well-planned documents leave instructions for those you trust to do their best to act in your place. If you have questions about your estate, please reach out to our team. If you require estate documents but are not in a financial position to have them professionally drafted, there are resources available to you, including the Edmonton Community Legal Centre, which can provide guidance on putting these together.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}