Parents who have children battling addiction or struggling with mental illness are often too consumed with the daily care and concern for their child to give consideration to the future and how their son or daughter will be cared for when they are gone, or whether their child will be able to manage the assets they might inherit.

Proper estate planning is important for all parents, but even more important for parents who have children who now or in the past struggled with alcohol and/or drug addiction or have any long-term mental issues that are of concern. There can be a lot of shame associated with such family issues, but a candid discussion with a properly experienced attorney is essential for proper estate planning.

How might estate planning differ in this situation?

Special testamentary trust provisions in your Last Will and Testament are often the answer.  Such trusts can be tailored to address special circumstances surrounding a child with addiction or mental illness. In the case of addiction, trust language can be included to address mandatory drug testing and the consequences of failed drug or alcohol tests, including suspension of distributions and treatment requirements. If you have a child with mental illness who is receiving public assistance, a carefully constructed Supplemental Needs Trust can provide benefits for your child that will not endanger their assistance. Also, special provisions should be utilized to provide your named trustees with directions you wish for them to follow in different specific scenarios. Of upmost importance is to name trustees who will be able to handle these special situations, and in certain circumstances it may even be appropriate to use an institutional trustee.

Additionally, we encourage every parent of a child over the age of 18 to have their child execute a Health Care Proxy and Power of Attorney, which can afford parents the ability to help their child who might be in crisis.  (See our blog post Got a Kid Going to College?).  Without a properly executed Health Care Proxy, you, as a parent, have no legal authority to speak with your child’s doctors to discuss medical issues and decisions, or even get information about the specific problems your child may be experiencing and recommended treatment.

Estate planning for parents with children with addiction or mental illness is different, but in many aspects is the same as the estate planning we handle for many of our clients at Schwartz Ettenger.  We spend time with our clients and through careful consideration help them create a plan that ensures all aspects of their special circumstances, needs and desires are carried out in the best way possible.

Please contact us for a consultation if you have any questions relating to your own circumstances. Regardless of your circumstances, don’t delay addressing your estate planning, as no one knows what tomorrow will bring.