On June 21, 2022, Volunteers of Legal Service (VOLS) Legal Director & Senior Law Project Director, Peter Kempner, testified before a historic joint hearing of the New York City Council’s Committees on Women and Gender Equity about the “Challenges Facing LGBTQIA+ Older Adults.” Mr. Kempner’s testimony addressed the ongoing struggles that the older generation of the LGBTQIA+ community face, and all the work we have yet to do to provide this group with equality. Here at VOLS, we take special care in helping seniors handle sensitive and personal legal issues. We also recognize that these processes vastly underrepresent the LGBTQIA+ community, and that the current system heavily operates based on heteronormative relationships and norms. VOLS’ testimony addressed these problems and supported the creation of a commission that would identify specific challenges to LGBTQIA+ older adults and develop equitable recommendations. Such a committee would pay respect to and improve the quality of life of NYC LGBTQIA+ older adults.
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Read the full text below:
NEW YORK CITY COUNCIL COMMITTEES ON AGING AND WOMEN AND GENDER EQUITY
Tuesday, June 21, 2022, 10:00 a.m.
SUBJECT: Oversight – Challenges Facing LGBTQIA+ Older Adults.
Good morning. My name is Peter Kempner. I am the Legal Director and Senior Law Project Director at Volunteers of Legal Service (VOLS). VOLS was established in 1984 and our purpose is to leverage private attorneys to provide free legal services to low-income New Yorkers to help fill the justice gap.
The VOLS Senior Law Project serves low-income New Yorkers age 60+ primarily by providing Last Wills and Testaments, Powers of Attorney, Health Care Proxies, and other essential advance directives free of charge. These life planning documents enable our clients to properly prepare for possible incapacity and death. They allow our clients to maintain income and avoid homelessness, ensure that their dying wishes are fulfilled, and empower our clients’ caregivers to obtain services necessary for our clients to access health care and age in place. The VOLS Senior Law Project also provides legal services on a range of other civil legal issues including landlord tenant matters, access to benefits, consumer matters, and other civil legal needs. We provide training and ongoing support to social workers, older adult center staff, and pro bono attorneys to address our clients’ legal needs.
While we strongly believe that all older adults should have the right documents in place as they plan for the future, we have several initiatives that focus on vulnerable sub-sets of the older adult population. These include older veterans, Spanish speaking seniors, older women, and LGBTQIA+ seniors. We have created these initiatives because we know that it is important to deliver culturally competent services that are tailored to the communities we seek to serve.
We specifically target outreach and services to LGBTQIA+ older adults, because of the unique challenges they may face as they age. Despite the United States Supreme Court’s decision in Obergefell v. Hodges in 2015, marriage equality does not mean that LGBTQIA+ older adults are now similarly situated as their heterosexual peers. As a population they are twice as likely to live alone than their straight counterparts. They are also four times less likely to have had children.
As we age family members often step in as caregivers. The importance of planning for the future becomes amplified when those traditional caregiving structures are not present. Because medical decision-making defaults to blood relatives, unless the patient has completed advance directives, LGBTQIA+ people who are estranged from their families may not have their wishes followed.
In New York State the Family Health Care Decisions Act lays out a hierarchical list of who can step in to make health care decisions if the principal is unable to make those decisions themselves. While chosen family members or “close friends” as defined by the statute may be able to step in to make critical healthcare decisions, their ability to do so is subservient to spouses, domestic partners, parents, children, and siblings. A “close friend” may only exercise decision making ability after presenting a signed statement to the attending physician that they maintain “regular contact with the patient as to be familiar with … the patient’s activities, health, and religious or moral beliefs.” These statutory requirements are clearly a burden when a loved one is facing a medical crisis. No one’s partner should have to prepare a signed statement in order to get access to and make decisions on behalf of their loved one, especially when a blood relative has the authority to step in and veto that ability. The preparation of a Health Care Proxy ensures that chosen family caregivers can make needed healthcare decisions without clearing administrative hurdles, facing discrimination, or fear that a blood relative will step in and take that power away.
Even when a caregiver is a spouse or adult child, they need to have the right tools in place in order to be effective in financial decision making. An LGBTQIA+ older adult who has executed a Power of Attorney authorizes their agent to seek government benefits to pay for housing costs, to sign leases, apply for and recertify for housing subsidies, and deal with any issue that may arise with their landlord or housing provider. The agent can also seek SNAP, Medicaid, and other critical benefits. Without a Power of Attorney loved ones may have to file for Guardianship in court, a process which is invasive, time consuming, and potentially costly.
Planning for the future is a hard process. It is a process that forces older adults to face their mortality and to take stock of who is closest to them and who they trust to care for them if their health declines. We believe that it is important for legal services providers to explicitly acknowledge the unique challenges that planning for the future poses for LGBTQIA+ older adults and to create a safe space for LGBTQIA+ older adults as they grapple with this process and make these hard decisions.
The challenges outlined in my testimony are just a few facing LGBTQIA+ older adults. The creation of a commission to identify challenges, share best practices, and develop expert recommendations on ways to improve the quality of life of LGBTQIA+ older adults is a laudable endeavor and one that would only serve to improve the lives of LGBTQIA+ New Yorkers as they age.
Thank you for allowing us to submit this testimony and for supporting the New York City LGBTQIA+ community and all older New Yorkers.
Peter Kempner, Esq.
Legal Director and Senior Law Project Director