I recently attended the 53rd annual Heckerling Institute on Estate Planning, a leading educational conference for estate planning professionals in the United States. After twelve years of practicing law, I finally made this resolution a reality. To say the least, the conference did not disappoint. Eight hours a day of advanced estate and tax planning can be exhausting – and strangely exhilarating for those of us who actually pay to listen to this stuff! Reflecting on how much I absorbed during this conference, it was one of the last presentations I attended that week which has stuck with me the most: Dealing With Unruly Beneficiaries.
Going into this particular presentation, I had (eagerly) anticipated learning from other professionals how to best assist clients who find themselves in a heated battle over a loved one’s inheritance. To my surprise, the speakers spent their ninety minutes focusing on people with behavioral health issues. The presenters were comprised of three very intelligent and well-spoken women: an estate planning attorney, a trust officer within a bank, and a psychologist, the latter of whom nabbed not one, but two degrees from Harvard. One of the speakers, despite her family spending hundreds of thousands of dollars on her brothers’ heroin addiction (who eventually succumbed to the disorder), explained she did not regret the financial resources spent on her brother’s addiction. She reasoned, “If your loved one was diagnosed with cancer and decided he wasn’t going to take the medicine and instead wanted to eat candy all day, would you sit back and watch him eat the candy? Or would you shove the medicine down his throat?”
Behavioral health is a broad term and can encompass things like substance abuse, gambling, mental health issues, incarceration, learning disabilities, and dysfunctional behaviors. Behavioral health issues manifest in people differently than physical problems. For example, a person with a broken leg will likely get the same diagnosis from several doctors. A person with drug, alcohol, or mental health issues, however, may get different “answers” from various professionals. As such, family of individuals dealing with behavioral health matters may find it incredibly difficult to understand. Likewise, administering a Trust for a beneficiary who suffers from a behavioral health issue is unquestionably tough.
In the world of estate planning, practitioners need to be careful how we define the term, “substance abuse.” For example, a married couple may want their children’s inheritance contingent on them being clean and sober, or without substance abuse issues. It sounds simple, but think of this from an administrative standpoint. Is alcohol a “substance?” What about prescription medication and our nation’s current opioid epidemic? Further, what constitutes “abuse” of the substance? The questions are endless, and the answers are not black and white. Therefore, having a Trust which accurately illustrates your intentions and gives the Trustee(s) the tools needed to navigate and administer the Trust is essential.
All people desire that their assets and money help their loved ones, not fuel a potentially life-threatening issue. As an estate planning attorney, it is important for me to not only identify my clients’ objectives, but to first and foremost understand their family and its dynamics. Planning for a beneficiary’s current or potential behavioral health issues requires, among other things, ensuring: (1) the right team is in place (e.g. having your oldest child act as Trustee and determine whether her younger siblings have a substance abuse issue is likely asking for trouble); (2) there is adequate communication (e.g. which professionals and how often should they be consulted?); and (3) the necessary procedures are available to carry out your Trust’s intentions (e.g. what type of due diligence is allowed and/or required of the Trustee to determine whether and how much funding the Trustee should distribute to or for the benefit of the impacted beneficiary?).
Dealing with behavioral health issues is no picnic, but it’s an extremely common reality. As such, planning for behavioral health issues – in all aspects – is vital.
The information contained above is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely upon this information.
