by James J. Flaherty, Jr. – Estate planning is difficult enough for some folks. Imagine planning for families in which one child has an addiction problem. While certainly a sensitive subject, the risks of not addressing the situation with your estate planning attorney can be devastating, not just for the client but for the child. An unrestricted inheritance for that child could result in the waste of those assets or worse, could contribute to the deepening of the problem.
So, what are the options?
People use trust agreements frequently, for many different reasons. For children in the midst of a substance abuse problem, a properly drafted trust could literally be a lifesaver. Providing the trustee with complete discretion over distributions to the child could allow for the payment of rent or groceries, if needed, but would not result in the child having unfettered access to the funds.
Further, the trust could explicitly provide for the payment of therapy, rehabilitation or transitional assistance. In other words, if the child desires treatment, there is an incentive to request the financial help that might be afforded under the terms of the trust. We generally prefer a fully discretionary trust, meaning that the trustee has the final word with respect to any distributions. An addict may need more than one opportunity for rehabilitation. Thus, using a milestone such as being drug free for a year, could be problematic, if the child were to relapse, after becoming entitled to all or a portion of the trust.
A word of caution with respect to the choice of a trustee. We generally recommend an independent trustee, such as a bank or advisor. By placing a non-family member in this role, it removes the emotion involved in dealing with the child. It’s far easier for a trust officer to deny a request for a distribution than a sibling or other relative.
There are times in which disinheritance is a last resort. It is possible that, even with a trust in place, a child who exhibits no desire to enter recovery, presents a danger to himself or others, and/or is deeply antagonistic toward others may not be helped. If you choose this option, please consult us. Particular care must be taken when omitting a child from your estate plan.
This is merely a cursory review of some of the issues related to this sort of planning. As always, we are here to help. If you have any questions or if we can be of any assistance, please feel free to contact us.