At the height of the AIDS crisis, dealing with death was a daily reality for the LGBTQ+ community. For so many, the epidemic meant more conversations about end-of-life planning, final wishes, and how people wanted to be remembered.
Years later, there now exists a generational divide within the community that resulted in a decrease of those critical conversations with younger generations.
“I think younger folks have been almost deliberately insulated from the trauma of the AIDS epidemic,” explains Olivia Hunt, senior policy council at the National Center for Transgender Equality (NCTE). “So it’s almost easier for the community as a whole to move on and try to be life-focused in a way that is doing a disservice to people who really do need to look into their end of life planning.”
That includes transgender individuals who now, because of changes to laws Ohio and most other states, can change the name and gender marker on their birth certificate. However, because of a lack of clear policy and guidance, they have less control over how they are remembered in death.
But there are ways to try and make those wishes clear: through legal documentation, assigning legal decision making authority to a trusted individual, or pre-planning a funeral.
Hunt said if you don’t want unsupportive family members planning your funeral, you probably don’t want those same unsupportive family members making medical decisions for you if you’re incapacitated. Having a medical power of attorney can make a person’s wishes about health care decisions clear.
Trans individuals can often benefit from having a close friend, partner, or just someone they trust make medical decisions for them if necessary. This allows the person to enter end-of-life care knowing their memory will be respected.
Maya Simek, legal director at Equality Ohio, said an Advance Care Directive is also an important option for adults. Advance Directives are legal documents that provide instructions on health care wishes. In Ohio, do not resuscitate orders, living wills, organ donation, and durable powers of attorney are all examples of advance directives that are authorized by state law. This document can be filed without a lawyer and can be signed by a notary or two witnesses who are not a personal physician, family member, or the individuals named as the decision maker in the advance directives.
Another form of documentation that could be valuable is the Respectful Disposition of Remains. Though this documentation isn’t legally binding, it serves as an advance directive that outlines how a person wants to be remembered, such as how they want their appearance to be maintained in death and at their funeral. This documentation outlines the right to direct the disposition of the declarant’s body or any part of the declarant’s body separated before death, including the right to determine the location, manner, and conditions of the disposition of the declarant’s bodily remains, according to Section 2108.70 of the Ohio Revised Code.
The Respectful Disposition of Remains process can provide evidence to funeral planners or others involved in the process that the person who has died had specific preferences or that they do not want to be remembered the way their unsupportive family prefers.
“Having all of these together can be one of the best ways to ensure that a trans person is respectfully remembered,” Hunt said.
Pre-arranged funeral services are also an option. In the case of pre-planned funeral arrangements, the service is paid for and terms of the service are determined in advance. In some cases, people will even write their obituaries in advance, determining what information they want included themselves.
“In most jurisdictions I’m aware of that allow for pre-planning and funerals in this way, it does allow you to select your next of kin, the person who’s going to be making the decisions about what happens to your body, and what happens for any memorial for you after you die,” Hunt said. “And that’s an excellent tool for trans people to use to plan for their funerals and to make sure they’re remembered respectfully.”
But Simek said preplanning a funeral can be very expensive and isn’t a realistic option for everyone. Sometimes, to help defray the costs of funeral services, local social services agencies and organizations affiliated with the deceased may have the funds to help, though this is far from a given.
Other end-of-life documents, like wills, are also important to consider. Without a will in place, the next of kin serves as the administrator of the deceased’s estate and then state law determines what happens to everything they own after death.
“A lot of people view wills as something that only matters if you happen to have a lot of money or a lot of property that you need to deal with,” Hunt said. “So instead, a lot of LGBTQ people will just ignore it. That means potentially an unsupportive family [member will]be deciding what happens to all of your possessions after you die, potentially disinheriting an unmarried partner that you’ve been with for decades.”
Lastly, preneed funeral contracts could also prove to be useful in avoiding the issue of being misgendered in death. Similar to the above documents, a preneed funeral contract pre-plans one’s funeral arrangements and names a trustee to carry out the plans, according to Section 4117.32 of the Ohio Revised Code.
Aaron Eckhardt, director of the Buckeye Regional Anti-Violence Organization (BRAVO), said they’ve heard preneeds more commonly used among same-sex couples who weren’t able to get married. Though Eckhardt said they’ve seen preneed documents challenged in court by other next of kin, the process could still prove to be a good legal option for trans and gender non-conforming people setting up after death care, as well as working with funeral directors and/or funeral homes before death.
“You could make arrangements for your own funeral, pay for it, and make your wishes very clear as to where the funeral is going to be,” Eckhardt said. “And I’ve heard some people working out those kinds of details in advance to give a funeral director a lot more to go on than just what next of kin is saying.” 🔥