Every person will have different complexities when it comes to where they want their assets to go after they die. For those in the LGBTQ2+ community, there are some very unique challenges around estate planning. Heather Richardson, Associate Vice President at TD Wealth, speaks with Kim Parlee about some concerns that members of the LGBTQ2+ community may encounter and how they might address them.
- Estate planning isn't just about having a will. While that is a big part of it, every person will have different complexities when it comes to where they want their assets to go after they die. For those in the LGBTQ community, there are some very unique concerns around estate planning. And here to give us a perspective is Heather Richardson. She's Associate Vice President at TD Wealth. Nice to have you here.
- Thanks. Great to be back.
- Let me ask you. So it's not the same for everyone. What are some of the-- tell me a bit why? I mean, because part of it I know is that the difference between being married and common law.
- Sure. Well, I think it's important to understand that having a will isn't a one-size-fits-all document. So from an LGBTQ2 perspective, one important consideration comes down to marriage. Common law in different provinces is treated differently. So for example, in Nova Scotia, if you are a common law spouse, and your partner passes away without a will, the assets don't automatically all come to you. First in line are your blood relatives.
- So this really depends on the provincial laws where you are. And you really gotta be careful because can you imagine being with somebody for 20 years and finding out you get nothing after everything you've built together? That is the problem right there. So if there is a will in place, is that all that matters?
- No, like I said, a will is not a one-size-fits-all document. And it's also important to take into consideration the jurisdiction that you live in. So marriage is recognized in Canada. But if, for example, you move outside of Canada to a country where your marriage isn't recognized, or if you own property in a jurisdiction that doesn't recognize your marriage, there are nuances as well. So it's important to understand the jurisdiction that you live in, as well as the jurisdictions where you own property.
- Also in terms of not just for property, in terms of your will, but also for children, minor children. So what are some things that LGBTQ couples need to think about when it comes to dealing with their minor children?
- Sure, great question. Where couples have adopted children together, less of a concern. Both partners have legal rights like a traditional couple would have. But if, for example, one of the spouses, one of the partners, is the biological parent, and the other is not, and they haven't taken the steps to--
KIM PARLEE: Formally adopt.
- --formalize an adoption, there could be the potential for guardianship struggle in the absence of specifically naming a guardian, either in the will or with a separate guardianship document, or if they haven't taken the steps to-- for the couple who-- for the individual who didn't biologically have the child to formally adopt the child.
- And these are, I mean, these are honestly nightmare scenarios. I mean, again, if you can imagine if there's some family issues, and they want to cause-- you can cause a lot of heartache.
HEATHER RICHARDSON: For sure.
- So it's really important, I mean, obviously to get this in place and understand exactly what you're doing.
- Absolutely. Every aspect of your property, your finances, your family, should be taken into consideration. And it's a little bit morbid, but if you sit back and think, should I get hit by a bus tomorrow morning, what would happen in the absence of a will, in the absence of guardianship or power of attorney?
- Another one is let's talk about the powers of attorney. You just mentioned it. Are there any specific things you should think about, again, for this community?
- Certainly. I'll start by saying that there are multiple types of power of attorney. And in their most simplest form, there is power of attorney for property and power of attorney for personal care.
- And this allows-- just to be-- to back up even a little more, this gives people the ability to make decisions on your behalf on property or health.
- Exactly, if you're not capable of making those decisions yourself. And so in both circumstances, it's very important for anybody to have a conversation with the individuals that they're appointing to ensure that they're crystal clear on the types of decisions you would want made on your behalf.
So with respect to personal care in the LGBTQ2 community, for example, a transgender individual might have specific medical considerations that they would want taken into consideration. And again, just having that conversation with the power of attorney that you're appointing to ensure that they're going to be there to advocate on your behalf if you're unable to do so yourself.
- And I think from speaking to other experts in the past, I mean, so much of this depends on your intent. So it's really important to sit down with somebody and say, my intent is for this to happen. What is the legal framework that needs to be in place for this to be true?
- That's right. Your intentions are extremely important. And again, you don't want to appoint somebody and have that come as a surprise to them. It's really important to go through the process with the individuals that you do intend on appointing and asking them how they feel about it and having those important conversations.
- You've got one here too that I had not thought about before-- estate planning, not yours, but of others around you, so your parents, let's say, how the estate planning could impact you, your children. Explain a bit about that.
- Yeah, it's interesting. We talked about children already. So if we go back to the scenario where a same sex couple has a biological child, so the child is a biological child of one of the partners, and the other perhaps hasn't gone through the process to formalize the adoption, if that individual's parents who are essentially grandparents of that child express their wishes to leave their estate or an inheritance to their grandchildren, but legal steps haven't been put in place to formalize that, that will could potentially be contestable, for example.
- Another grandchild could come in and say, it's me, not you.
- Exactly. Oh, and really questioning what grandchild means, what the definition of grandchild means. So it could be about specifically naming an individual.
- Great insights. Always a pleasure having you here, Heather. Thank you.
- Thanks so much for having me.