Planning Ahead: Incapacity, Powers of Attorney, and LGBTQIA+ Individuals

June 18, 2026

For members of the LGBTQIA+ Community, Estate Planning is more than a box-ticking exercise; it is a vital act of protection and self-determination. Ensuring that you have the necessary arrangements in place for all eventualities allows you to maintain control and dignity, especially in instances where it is fundamental to your sense of self.

Whilst it is important for everyone to plan for the future, there is particular emphasis on the LGBTQIA+ Community due to the risks associated with failing to plan for various eventualities.

In this article, we will focus on what happens in your lifetime if you were to lose mental capacity due to an illness, accident, or old age, and how to ensure that your wishes continue to be represented and advocated for.

Lasting Powers of Attorney – The Basics:

Lasting Powers of Attorney are legal documents which allow a person (“the Donor”) to appoint someone else (“the Attorney”) to make decisions on their behalf. The Donor must have mental capacity at the time of creating the document, and the document must be registered at the Office of the Public Guardian before it can be used.

If someone has lost their mental capacity and they do not having Lasting Powers of Attorney in place, those who wish to assist the individual would need to make an application to the Court of Protection to become the individual’s Deputy. This process is more complex, timely, and costly then taking the steps to draft Lasting Powers of Attorney whilst someone has capacity.

There are two types of Lasting Power of Attorney; Health & Welfare, and Property & Finance.

Health & Welfare

The Health & Welfare Lasting Power of Attorney will allow your Attorneys to make decisions about where and how you are cared for, medical treatments, and make decisions regarding life-sustaining treatment options.

Each individual should consider drafting a Health & Welfare Lasting Power of Attorney to ensure that their wishes are advocated for and respected, sometimes despite contrasting medical opinion.

Property & Finance

The Property & Finance Lasting Power of Attorney will allow for your Attorneys to access your bank accounts, deal with your investments, and pay your bills. They can also buy and sell property on your behalf.

Each individual should consider drafting a Property & Finance Lasting Power of Attorney to ensure prompt access to finances that could prevent financial issues or lack of provision for your needs as the Donor, or to prevent placing your family in financial detriment through not having access to accounts held in your name.

Estrangement & Chosen Families:

Some LGBTQIA+ individuals experience estrangement from biological or legal families due to family members not respecting their wishes or relationships.

As a result of this, members of the LGBTQIA+ Community instead rely on close friends, “chosen” family, support figures, and partners and would rather these individuals make decisions on their behalf over their biological family.

However, failing to partake in Estate Planning will likely remove the ability for these individuals to have any influence on their healthcare or finances, and instead this decision will revert to their biological family.

This is a prevalent issue for those who are Transgender or Non-Binary, as the failure to appoint the appropriate Attorney (LPA) may lead to estranged family members making decisions in their place. This creates the risk of those individuals either receiving incorrect medical care, such as stopping hormone treatments, or being misgendered whilst receiving medical care.

Property & Finance Lasting Power of Attorney:

The absence of a Property & Finance Lasting Power of Attorney may impact members of the LGBTQIA+ community by restricting access to assets in the individual’s sole name. If, until the point the individual lost capacity, they lived with their partner and contributed to half of the bills – a loss of capacity could place the partner in extreme financial difficulty. Moreover, if the individual’s family does not agree with the relationship and become the Deputies for the individual, it is unlikely that the partner will receive any further support at all. Not only is it likely that the relationship will break down, but the partner would also be left alone without provision.  

In addition to this, if both the partner and the biological family made an application to be the individual’s Deputy, this will lead to stress, delay, and costs whilst the matter is resolved.

Health & Welfare Lasting Power of Attorney:

The absence of a Health & Welfare Lasting Power of Attorney carries increased risk for the LGBTQIA+ individual, as this may mean that medical professionals will likely consult with your biological family, even if the relationship is fractured, and partners or friends will have no standing to advocate for your identity, wishes, or values. This can result in adverse consequences, from misgendering in care settings and the stopping of hormone treatments to exclusion of long-term partners in vital discussions and decisions which are not in your best interests.

What you should be considering next

Lasting Powers of Attorney ensure that the right person speaks on behalf of the Donor, someone who affirms their identity and truly understands how they wish to be treated. There is a common misconception that “someone sensible will take over” when required, but this is unfortunately not always the case.

At Herrington Carmichael, we can assist you with drafting your Lasting Powers of Attorney, with a sensitive and well-informed approach to all varieties of family circumstances. We can assist with choosing your Attorneys, expressing particular wishes and ensuring that you can continue with confidence that your affairs are in order.

If you want to find out more, please contact us.

Jessica McDonald
Solicitor, Private Wealth & Inheritance
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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