End of Life Guide for LGBTQ+ Texans
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Introduction
Planning for the end of life is an essential, yet often overlooked, part of ensuring your wishes are honored and your loved ones cared for. For LGBTQ+ Texans, this process is especially important. This guide combines key information on essential legal documents, planning, and how to navigate these decisions in a way that reflects your values, beliefs, and identity.
Whether you are married or not, this guide provides you with the tools and knowledge to make informed decisions about your estate, healthcare, and end-of-life arrangements. By preparing now, you can help ease the burden on your loved ones and ensure your decisions are honored.
This guide was prepared by the Houston Bar Association LGBTQ+ Committee and the Stonewall Law Association of Greater Houston, with the goal of providing LGBTQ+ Texans with the resources they need to make thoughtful, informed decisions. It was sponsored in part by a grant from the Texas Bar Foundation to the Stonewall Law Clinic (a project of the Stonewall Law Association of Greater Houston). We hope that this resource will empower you to take the necessary steps to ensure that your wishes are honored and your loved ones are supported.
For more information about these organizations, you can visit their websites:
Taking the time to plan ahead ensures peace of mind and clarity, both for you and your family. This guide is a resource to help you through this process, offering explanations, legal considerations, and helpful links to official resources where you can find more information or get assistance with creating these important documents.
Important Legal Documents
Whether you are married or not, it is essential to have the right documents in place to ensure that your wishes are honored, and your loved ones are supported. The following outlines some key legal documents you will need, the purpose of each, and resources to help you navigate the process.
1. Will
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Purpose: A will is a legal document that allows you to express your wishes regarding the distribution of your property, assets, and belongings after your death. It can specify who will inherit your property, who will care for any minor children, and how debts should be handled. Without a will, Texas state law will determine how your estate is divided, which may not align with your wishes.
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Why It’s Important: Having a will is one of the most powerful ways you can ensure your final wishes are respected. A will ensures that your estate goes to those who truly matter to you, whether they are your partner, friends, or chosen family members. Without a will, your property, belongings, and assets will be divided according to Texas law, which may not align with your wishes. For LGBTQ+ Texans, having a will is especially important to ensure that your chosen family, partner, or close friends are recognized and provided for, as they may not automatically inherit under state laws. A will can also help protect your loved ones from confusion or disputes over your estate, reducing the burden they might face during a difficult time.
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Key Considerations: A will is a vital document that outlines your wishes for how your property and assets should be distributed after your death. When creating a will, it's important to carefully consider several factors:
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Beneficiaries: You can name individuals or organizations to inherit your property, assets, or money. If you are married or in a domestic partnership, consider naming your spouse or partner as a primary beneficiary, but also think about whether other loved ones, chosen family members, or charitable organizations should be included.
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Executor: This is the person you appoint to carry out the terms of your will and handle your estate after your death. Choose someone you trust; the executor will be responsible for managing your assets, paying debts, and distributing your property according to your wishes. Consider whether you want your executor to serve without court supervision (an “independent executor”) or bond, as this is often the quickest, easiest, and least expensive way to ensure your estate is properly distributed. Make sure your chosen executor accepts this important responsibility and understands that they will bear costs, such as employing an attorney to assist in the probate process, for which they may be reimbursed from your estate.
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Guardianship: If you have children, a will allows you to name a guardian for them in the event of your passing. This is particularly important for LGBTQ+ parents, who may want to ensure that their children are cared for by an unmarried partner or supportive family member.
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Assets and Property: Be specific about how you want your property (including real estate, vehicles, personal items, bank accounts, etc.) to be divided. If you have sentimental items or family heirlooms, make sure to include clear instructions to avoid confusion or disputes. If you own significant assets, it may be a good idea to consult with an attorney to ensure that everything is correctly accounted for.
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Alternate Plans: Life is unpredictable, so it’s wise to include alternate beneficiaries or plans in your will in case your primary beneficiaries pass away before you or are otherwise unable to inherit. This helps ensure your assets are distributed according to your wishes, even if circumstances change.
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Updating Your Will: Over time, life circumstances can change. You may enter into a new relationship, acquire new assets, or experience other life events that require updating your will. It's essential to regularly review and update your will to reflect your current wishes. A will can be amended through a "codicil," or you can create a new will entirely. Keep in mind that older versions of your will should be properly revoked to avoid any confusion.
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Witnesses: A will must be signed by at least two witnesses, each of whom must be at least 14 years old and is nnot a beneficiary under your will.
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Notarization: Not required, but helpful. A notarized will is self-proving, meaning you do not need to provide witness testimony in court when it is admitted to probate.
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Holographic Will: You can create a will that is entirely handwritten, and it does not require witnesses. However, it must be fully handwritten and signed by you.
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Helpful Resources:
2. Powers of Attorney
A Medical Power of Attorney and a Durable Power of Attorney are both important legal documents, but they serve different purposes. The Medical POA allows you to designate someone to make healthcare decisions on your behalf if you become incapacitated and unable to communicate your wishes. This includes decisions about medical treatment, surgery, and end-of-life care. The person you choose as your agent will have authority only regarding your healthcare and medical decisions, not your financial matters.
On the other hand, a Durable POA gives your designated agent the power to manage your financial and legal affairs if you become incapacitated, such as paying bills, managing investments, and handling other financial responsibilities.
The key difference is that the Medical POA deals with healthcare decisions, while the Durable POA focuses on financial and legal matters. Both documents ensure that the person you trust can make decisions on your behalf when you're unable to do so, but they apply to different areas of your life.
A. Medical Power of Attorney
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Purpose: A Medical Power of Attorney (a “Medical POA”) allows you to appoint someone you trust to make healthcare decisions for you if you become incapacitated and unable to express your wishes. This includes decisions regarding medical treatment, surgeries, and end-of-life care. You can specify limitations or conditions for the person you appoint, giving you control over the types of decisions they can make.
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Why It’s Important: A Medical POA ensures that, if you are incapacitated and unable to communicate, someone who understands and respects your wishes will be able to advocate for you and make decisions about your medical treatment. Having this document in place means your wishes will be honored, whether it's about life support or other healthcare choices, and you won’t be subjected to decisions that might go against what you want. Without a Medical POA, your family members could have the legal right to make decisions about your healthcare, even if those decisions are not what you want.
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Key Considerations:
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Choosing Your Agent: Pick someone who you trust and who knows your medical preferences well. It’s essential to have a conversation with this person beforehand to ensure they’re comfortable with the responsibility.
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Scope of Authority: Decide whether your agent will have full authority over your medical care or whether there will be limitations, such as decisions regarding life support or surgeries.
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Updating Your POA: Be sure to review and update the document if your healthcare preferences or relationships change, ensuring it remains accurate and relevant
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Witnesses: Requires two qualified witnesses or a notary.
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Notarization: Not required if there are witnesses.
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Restrictions on Agent: The agent must be someone who is not a healthcare provider and is at least 18 years old.
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Helpful Resources:
B. Durable Power of Attorney
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Purpose: A Durable Power of Attorney (a “Durable POA”) allows you to designate someone to handle your financial and legal matters in the event that you become incapacitated and are unable to make decisions for yourself. This could include managing bank accounts, paying bills, handling investments, or dealing with legal issues.
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Why It’s Important: A Durable POA allows you to choose someone who will take care of your financial and legal matters in case you are unable to do so yourself. For LGBTQ+ people, having a trusted person manage your finances if you become incapacitated is important. A Durable POA ensures that decisions about your finances, like paying bills or managing accounts, are handled by someone who is aligned with your best interests. Without a Durable POA, it may be difficult for your financial and legal interests to be properly handled while you are incapacitated.
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Key Considerations:
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Choosing Your Agent: Choose someone you trust completely with your financial and legal matters. It’s important to select someone responsible, organized, and familiar with your wishes.
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Scope of Authority: You can decide whether your agent has broad powers to handle all your financial matters or specific powers limited to certain areas.
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Revocation and Updates: You can revoke or change your Durable POA at any time. It’s a good idea to review the document periodically to ensure it reflects your current needs.
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Witnesses: Requires two witnesses or a notary.
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Notarization: Not required if there are witnesses.
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Helpful Resources:
3. Advanced Directive (Living Will)
- Purpose: An Advanced Directive, also known as a Living Will, is a document that outlines your wishes for medical treatment if you are terminally ill or in a permanent vegetative state and unable to communicate. It allows you to specify whether you want life-sustaining treatment, such as a ventilator or feeding tube, to be administered or withdrawn. It ensures that your medical care aligns with your preferences in end-of-life situations.
- Why It’s Important: An advance directive is your opportunity to make decisions about your healthcare ahead of time, especially when it comes to life-sustaining treatment in cases of terminal illness or incapacitation. A living will allows you to clearly express what medical care you want—whether that means avoiding artificial life support or requesting specific care that aligns with your beliefs. In connection with a Medical POA, a living will helps to ensure that your wishes are respected.
- Key Considerations:
- Decisions to Include: Think about the types of life-sustaining treatments you would or would not want, as well as other end-of-life decisions, such as organ donation or pain management.
- Communicating with Your Healthcare Agent: Ensure that your healthcare agent (if you have one) is aware of your preferences and is prepared to make decisions based on them.
- Witnesses: Requires two witnesses or a notary.
- Notarization: Not required but helpful to avoid challenges in court.
- Helpful Resources:
4. Agent to Control Disposition of Remains
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Purpose: The Agent to Control Disposition of Remains document allows you to designate someone to make decisions regarding your funeral, cremation, or burial after your death. This document ensures that the person you trust will have the authority to make these final arrangements, according to your wishes.
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Why It’s Important: This document allows you to designate someone you trust to control the disposition of your remains after death. This is especially important for LGBTQ+ people, as family members may not always honor your wishes, may not recognize a chosen name, or may have a different set of values regarding your final arrangements. By naming an agent who understands your identity and preferences, you ensure that your burial, cremation, or memorial service aligns with your wishes. Without this, state laws may determine who can make these decisions for you.
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Key Considerations:
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Choosing Your Agent: Select someone who you trust to handle the final arrangements in a way that reflects your wishes and values. Have a discussion with this person in advance to ensure they’re comfortable with the responsibilities.
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Specific Instructions: Include any specific instructions limiting the decisions your agent can make.
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Notarization: The agent must sign, and your signature must be notarized.
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Helpful Resources:
5. Bank Accounts, Investment Accounts
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Purpose: Transfer on Death and Payment on Death accounts allow you to designate a beneficiary who will inherit your bank accounts, investment accounts, or other assets upon your death without going through the probate process. These designations ensure that your assets are passed directly to the named beneficiaries, bypassing the probate process.
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Why It’s Important: With Transfer on Death and Payment on Death designations, you can ensure that your assets pass directly to the people you want to inherit, without having to go through probate. By designating a beneficiary, you can avoid complications and ensure your accounts go to the person you want to have them and provides them access to the accounts without waiting on an order from a probate court.
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Key Considerations: Each bank or financial institution has its own specific form for TOD and POD accounts, and each form must be signed and witnessed according to the bank's requirements. You should consult your bank to ensure you complete the necessary paperwork.
- Choosing a Beneficiary: Be sure to carefully select a beneficiary who is reliable and trustworthy. You can designate more than one beneficiary if desired.
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Changing Beneficiaries: You can change or revoke a TOD or POD designation at any time while you are alive using the forms issued by your bank
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Witnesses/Notarization: Varies by bank. Some may require witnesses; others may not. Some institutions may require notarization for the forms.
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Helpful Resources:
6. Transfer on Death Deeds for Real Property
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Purpose: A Transfer on Death Deed allows you to transfer real property to a beneficiary upon your death without the need for probate. This deed allows you to retain control of the property during your lifetime, and the transfer happens automatically upon your death.
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Why It’s Important: A Transfer on Death Deed ensures that your real property, such as a home or land, passes directly to the beneficiary of your choosing without the need for probate. For LGBTQ+ people, this can be a crucial tool, as it allows you to designate a partner or chosen family member to inherit your property without going through probate. Additionally, avoiding probate can save your loved ones both time and money during an already difficult period. This ensures that your property goes to the person or people who matter most to you, reducing the risk of legal disputes and helping to preserve your legacy.
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Key Considerations: The deed must be filed with the county clerk and should be executed in a way that complies with Texas law. You can change or revoke the deed at any time while you’re alive, but it only takes effect upon your death.
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Witnesses/Notarization: The Transfer on Death Deed must be signed in the presence of a notary. No witnesses are required.
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Helpful Resources:
7. Transfer on Death for Vehicles
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Purpose: A Transfer on Death designation for a vehicle allows you to designate a beneficiary who will automatically inherit the vehicle upon your death without the need for probate. The beneficiary will need to file paperwork with the Department of Motor Vehicles (DMV) to claim the vehicle.
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Why It’s Important: A Transfer on Death designation for vehicles allows you to bypass probate and ensures that your vehicle is passed directly to the person you choose. This helps simplify the transfer process, providing clear and legal instruction on who should receive your vehicle, and can avoid family disputes during an emotional time.
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Key Considerations: The transfer on death designation must be listed on the title of the vehicle and filed with the state. The designated beneficiary will need to present the proper documentation to transfer the vehicle after your death.
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Witnesses/Notarization: The TOD designation is typically included on the vehicle’s title form. Notarization or additional witnesses may not be required, but specific forms can be obtained from the Texas Department of Motor Vehicles (DMV).
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Official Resources:
- Texas DMV Transfer on Death (Vehicle Title)
8. HIPAA Designation (Health Insurance Portability and Accountability Act Authorization)
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Purpose: A HIPAA designation allows you to name individuals who have the legal right to access your medical records and communicate with your healthcare providers in the event you are unable to do so yourself. This document is important for ensuring that the people you trust are able to be involved in your healthcare decisions and stay informed about your condition if you are incapacitated.
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Why It’s Important: For LGBTQ+ people, a HIPAA designation is particularly important in situations where family members may not respect your privacy or wishes regarding medical treatment. If you are incapacitated, this document ensures that a chosen family member, partner, or trusted friend can be included in discussions about your medical care. Without a HIPAA designation, healthcare providers are generally only allowed to release medical information to your legal spouse or blood relatives, which could exclude those you rely on most in your life.
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Key Considerations: You can specify who you want to designate for this role and outline any limitations or permissions regarding the release of your medical information. A HIPAA authorization typically needs to be signed and notarized, and it remains valid until you revoke it or until it’s no longer necessary.
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Witnesses/Notarization: It’s not required by law to have a witness or notary, but a notarized form is often recommended for extra clarity and legal protection.
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Additional Resources:
9. Hospital Visitation Authorization
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Purpose: A Hospital Visitation Authorization is a legal document that allows you to designate specific individuals who are permitted to visit you in a medical facility. This ensures that your chosen visitors have priority, even if hospital policies or state laws typically prioritize family members.
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Why It’s Important: This authorization is particularly significant for individuals whose visitors may not be legally recognized as immediate family. Without this document, hospitals may restrict visitation to legal relatives, potentially excluding partners, close friends, or chosen family members.
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Key Considerations:
- Selection of Support Person: Choose a trusted individual as your "support person" who will have the authority to visit you and manage your visitation rights on your behalf if you become unable to do so.
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Accessibility: Keep the original document in a safe place and provide copies to your designated support person, healthcare providers, and any relevant medical facilities to ensure your wishes are honored.
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Witnesses/Notarization: To ensure the document is legally valid and recognized by healthcare facilities, it should be notarized. While some hospitals may accept an unsigned or unwitnessed authorization, having the document properly notarized reduces the risk of disputes or challenges to your designated visitor’s authority.
- Additional Resources:
