Founding Attorney
When you sit down for an estate planning consultation, you’re making one of the most important arrangements for your family’s future. You might feel concerned—or even embarrassed—about discussing sensitive issues such as mental health challenges, addiction, or other personal struggles affecting you, your children, or your extended relatives. But here’s why complete honesty is not only advised—it’s absolutely necessary.
Very Real Scenario: Imagine a grandmother passes away, leaving a $300,000 inheritance to her grandson, who suffers from severe mental illness, drug addiction, and homelessness. At first glance, this gift may seem like a generous lifeline. However, in reality, it may create daunting logistical and legal hurdles for the family:
- Locating the Beneficiary: The grandson’s transient lifestyle and strained family relationships mean it is difficult even to find him to notify him of the inheritance or involve him in estate proceedings.
- Capacity and Participation: If found, the grandson may not have the mental capacity to understand or manage the bequest, and may distrust or resist any intervention.
- Risk of Squandering Assets: Without legal protections, he could receive the entire $300,000 outright. Given his addiction, there is a high likelihood the money could rapidly be lost to drugs or those seeking to exploit him.
- Family Dilemma: Relatives may worry about his well-being and whether a lump-sum inheritance is actually harmful by fueling his addiction.
- Guardianship or Trust Solutions: The family might consider seeking a guardianship or having the inheritance placed in a trust managed by a responsible third party (not a family member), with tightly controlled distributions—for example, only paying for housing, treatment, or necessities. A trust can also set incentives, such as requiring treatment participation or clean drug screens before making distributions.
This scenario underscores how easily an inheritance meant to help can inadvertently lead to tragedy or wasted assets. Only by openly discussing these realities with your estate planning attorney can solutions be crafted that both protect your loved one and honor your intentions.
Why Mental Health Matters in Estate Planning
Mental health includes:
- Drug, alcohol, and gambling addictions
- Severe anxiety, depression, or bipolar disorder
- “Failure to launch” (difficulty with independence)
- Other diagnosed or undiagnosed mental illnesses
These issues may affect you or anyone in your circle of beneficiaries, heirs, or even those you consider as possible decision-makers (fiduciaries) for your estate.
Estate Planning Questions Are Routine—and More Common Than Ever
It might seem intrusive when your attorney asks about family mental health, but there’s a reason: it’s standard, because it matters.
- Prevalence: Nearly one in five adults in the U.S. experience mental illness; substance use issues and anxiety disorders are on the rise.
- Protection: The goal isn’t judgment—it’s to protect your wishes, your assets, and vulnerable loved ones.
Why Transparency is Critical for Your Plan
Here’s why your estate planning attorney needs to know all the facts—even the uncomfortable ones:
1. Preventing Loss and Waste of Inheritance
- Loved ones with addiction or severe mental illness may waste or lose assets due to impulsive decisions or exploitation by others.
- Special provisions like a spendthrift trust or professional trustee can help guard an inheritance.
2. Guarding Access to Essential Government Benefits
- Disclosure is crucial if a loved one receives (or may later need) government benefits like Supplemental Security Income (SSI), Medicaid, or housing support.
- An outright inheritance can disqualify a person from benefits. Proper trust arrangements can prevent this issue.
3. Ensuring Appropriate Fiduciary Choices
- Serving as an executor or trustee is a serious responsibility.
- Mental health issues such as depression, anxiety, or addiction can impair someone’s ability to manage money or make critical decisions.
- Honest conversations help ensure only responsible individuals are selected as fiduciaries—protecting you and your estate.
4. Capacity and Legal Challenges
- If a loved one’s decision-making capacity is in question, early disclosure helps your attorney plan for possible challenges or the need for legal guardianship.
- This protects your wishes from being contested or overturned in court.
Common Mental Health Challenges That Impact Estate Planning
- Addiction: Drug, alcohol, or gambling problems can lead to asset depletion or exploitation.
- Severe Anxiety or Depression: Can make tasks like handling money or property overwhelming.
- Failure to Launch: Young adults unable to live independently may require extra support.
- Bipolar Disorder, Schizophrenia, or Other Disorders: May affect stability, judgment, and capacity to fulfill legal or financial roles.
What Could Happen if You’re Not Upfront?
Failing to discuss mental health challenges can have serious consequences:
- Disqualified Benefits: Inherited money may abruptly cut off essential medical or income assistance.
- Mismanaged Assets: Without the right trust or trustee, assets could vanish due to poor decisions or risky behavior.
- Legal Disputes: Ambiguity can spark family conflict or costly court battles.
- Missed Protections: You could miss out on legal tools designed to help families facing these very issues.
How Your Attorney Can Help—If They Know the Facts
Being open empowers your attorney to:
- Draft Protective Trusts: Shields your loved one from self-harm and creditors.
- Structure Inheritance for Stability: Releases funds over time, pays for services, or supports recovery.
- Connect to Support: Refer you to allied professionals for further guidance if needed.
Frequently Asked Questions
“Is my information confidential?”
Yes. Everything you say is protected by attorney-client privilege.
“Will my family be judged?”
No. Attorneys ask these questions because these situations are common—they help all kinds of families plan.
“What if my loved one’s needs change over time?”
A skilled attorney builds flexibility into your plan and updates it as circumstances evolve.
Key Takeaways
- Mental health and addiction are common and affect many families.
- Open, honest disclosure with your estate planning attorney is vital.
- Your attorney’s role is to safeguard your wishes and your loved ones with sensitivity and expertise.
No family is perfect—estate planning isn’t about hiding struggles, it’s about preparing for reality. By having an honest conversation, you give yourself, and those you care about, protection and peace of mind for the future. Take your attorney into your confidence—they’re your ally in leaving a meaningful legacy.
Contact Sverdlov Law PLLC today at www.sverdlovlaw.com or 212-709-8112 or book a time on our calendar https://calendly.com/rochelle-sverdlovlaw/15min for a FREE evaluation of your case and get started with a plan tailored to your family’s needs.
This information is provided as a general overview and does not constitute legal advice. For personalized guidance, consult a New York special needs attorney.