Legal issues for lesbian and gay people

Lesbian and gay people may be unaware of the rights and protections they have in law. They may lack confidence or may not want to 'out' themselves to professionals and organisations. They may have already experienced hostility. This factsheet looks at some legal issues that lesbian and gay people should be aware of.

The Civil Partnership Act 2004

The Civil Partnership Act 2004 came into effect in December 2005 and allows same-sex couples to make a formal, legal commitment to each other by entering into a civil partnership. Civil partnerships are similar to civil marriage. Both partners must be 16 years old or over. They must not already be in a civil partnership or marriage, or be closely related. A range of important rights and responsibilities comes with entering a civil partnership. Under the act, civil partners can:

• have a duty to provide reasonable maintenance for each other and any children
• be assessed in the same way as spouses for child support
• receive equitable treatment for the purposes of life assurance
• be recognised under intestacy rules (the legal process when someone dies without leaving a will)
• receive employment and pension benefits
• be recognised for immigration and nationality purposes
• have access to fatal accident compensation.
  

For tax purposes, civil partners are treated in the same way as married couples.

The local registration service administers the process of entering into a civil partnership. On the day of registration, each partner signs the register in the presence of the registration officer and two witnesses. Civil partners can celebrate their civil partnership in any way they choose after the statutory steps of registration.

There is a formal, court-based process for dissolution of a civil partnership.

In the event of a partner's death, civil partners have the right to pass on survivor pensions, as married people do. The Civil Partnership Act 2004 requires pension schemes to provide survivor pensions for civil partners from rights built up from as far back as 1988. This replicates the current position for those widowed in a marriage.

Same-sex couples who have entered legally recognised overseas partnerships are also treated as civil partners in the UK.

Next of kin

The term 'next of kin' is often used when talking about informing family members about a patient's current and likely future condition. This phrase originally related to property entitlement but it is now used more widely by health professionals. The term 'next of kin' has no legal standing other than when referring to matters relating to wills/probate etc.

Lesbian and gay partners may find that they are denied information because they are not 'next of kin'. However, health professionals have a legal duty of care to act in the 'best interests' of the patient. The carer may want to stress that it is in the best interests of the patient that the carer is fully informed. For more information see Factsheet 472, Enduring power of attorney and lasting powers of attorney.

Upon the death of a partner

When someone dies, 'probate' must be sought. This means that the local probate office issues a 'grant of representation' to someone to distribute the property and belongings of the deceased.

There are three types of grant:

• that given to a person named in the will as an executor
• that given to someone who is not named as an executor, but who is mentioned in the will
• that given to someone who is next of kin (this occurs where there is no will).
  

If a will has not been made and the partnership was not registered, a person's possessions will pass to their blood relatives in a fixed order. It is therefore important for same-sex couples to write a will in accordance with their wishes.

Partners registered under the new Civil Partnership Act are treated in the same way as a married couple - if there is no will, the surviving partner is automatically considered 'next of kin'.

Inheritance tax

Couples who are married and same-sex couples who are registered under the Civil Partnership Act do not have to pay inheritance tax upon the death of their partner. Same-sex couples who are not registered do have to pay the tax.

For 2009/10, the inheritance tax threshold is £325,000. Anything over this is taxed at 40 per cent. This has led to some same-sex partners having to sell their property, especially in places where the housing market is strongest, for example, in London. At least some of this inheritance tax will be due before a grant of representation can be given (see above).

To find out more, contact the HM Revenue and Customs (see 'Useful organisations')

Lasting powers of attorney

If a person with dementia loses the capacity to look after their own money they will need someone to manage it for them. That person will need legal authorisation to undertake this task.

A Lasting Power of Attorney (LPA) is a legal document signed by a donor which appoints someone to act as their 'attorney' should they become unable to look after their finances or to make health and welfare decisions on their own behalf. The Court of Protection and its administrative arm, the Office of the Public Guardian, oversees the appointment of attorneys.
(See Factsheet 472, Enduring power of attorney and lasting powers of attorney.)

It is important to point out this provision as soon as possible to people in same-sex relationships and to single gay people who may wish to nominate the most appropriate person/people to make decisions relating to their finances and/or health and welfare should they become incapacitated.

Your local Alzheimer's Society branch will always be willing to talk to you and offer advice and information to support your needs.

For more information, Dementia Catalogue, our specialist dementia information resource is available on the website at
alzheimers.org.uk/dementiacatalogue

Useful organisations

Alzheimer's Society LGBT Support Group

Devon House
58 St Katharine's Way
London E1W 1JX
T 0845 3000 336
E lgbtsupport@alzheimers.org.uk
W alzheimers.org.uk/lgbtsupport

Telephone support service for LGBT people with dementia and LGBT people who are current, or former, carers of people with dementia.

Stonewall

Tower Building
York Road
London SE1 7NX
T 020 7593 1850
08000 50 20 20 (info line)
E info@stonewall.org.uk
W www.stonewall.org.uk

Stonewall has list of gay-friendly solicitors you may wish to contact - see the 'information bank' on their website.

HM Revenue and Customs

W www.hmrc.gov.uk

Government department responsible for collecting the bulk of tax revenue. To find your tax office, visit the website (above).

Office of the Public Guardian

Archway Tower
2 Junction Road
London N19 5SZ
T 0845 330 2900
E customerservices@publicguardian.gsi.gov.uk
W www.publicguardian.gov.uk

Customer services provide free booklets on Lasting Power of Attorney, and deputyship. Their phoneline is available from 9am to 5pm on weekdays. The Court of Protection is at the same address.

Factsheet 481

Last updated: July 2009
Last reviewed: July 2009

Reviewed by: Dr Elizabeth Price, Alzheimer's Society LGBT Support Group Steering Committee