Estate Planning When the Heir is a Substance Abuser

Drug use is on the rise. According to the Rhode Island Department of Health (RIDH), drug overdose deaths reached a record high of 384 in 2020 and the trend continues. Among the factors driving the numbers, according to the RIDH, were greater use of cocaine, increased cutting of drugs with lethal fentanyl, and alcohol use.

Nationally, overdose deaths rose as well during the second half of 2019 and continued that trend as the pandemic and subsequent lockdown produced conditions that led to an environment where increased drug use and overdose deaths would thrive in -- economic crash, social isolation, and increased mental health issues. Further, the lack of access to professional help, including inpatient and medication-assisted treatments, further exacerbated the problem.

Drug use rose in all groups, including seniors, but this blog is not about them, but about those who may have children or loved ones who are the beneficiaries of a will or trust who also suffer from a "substance use disorder". It is an issue that a growing number of estate planning clients are talking about, and sadly, needing to address as they plan the disposition of their estates.

Making It Real

When an elderly Cape Verdean woman entered my office for her first counseling session, it was easy to see the distress in her eyes and a lifetime of struggle etched in the wrinkles on her face. Her name was Branca and the story she told was unique, yet typical of the plight of families living with an addict.

She had three children, two daughters, and a son. One of her daughters, Helena, had died from an overdose of drugs. Her youngest daughter, Valeria, was a nurse at a hospital in the greater Boston area. Her son, Davi, seemed to be following in his sister’s footsteps.

Branca spoke about an early life of abuse, perpetrated by her husband and the father of her children, Afonso, who had long since disappeared upon entering the United States. And it wasn’t just she who felt the abuse, her children were also victims.

“Helena,” said Branca in broken English. ”She gets the worse of it because she was oldest. She left home when she was seventeen and never come back.” She spoke of the troubles with her oldest daughter, the seemingly regular weekend visits to the emergency room where she often laid close to death as a result of an overdose of heroin.

“Every week, I get called and need to go to the hospital. She died so many times that when I was called the last time, I did not believe she was dead. But when I got there, she was gone,” said Branca.

Then came a startling but understandable statement. “My girl, she buried about a mile from here. I’m at peace now because I know she is at peace. No more weekends of crying and waiting for phone calls. I know where she is all the time now,” said Branca without much emotion, obviously jaded from the years of the emotional roller coaster.

She spoke with pride, though, about her youngest Valeria. “She goes to school and becomes a nurse, I’m proud of her. She gives me two grandchildren and a nice son-in-law. It makes me feel good, you know?”

Then came the real reason she had come to see me, her continued problems with Davi, who also was an addict. He used “just about anything he can get,” she said.

Branca stated that Davi has been to programs in this country and she even sent him out of the United States to a program in France, but nothing seemed to work. “Even with my problems,” she explained, “I still manage to buy property here in Massachusetts and in my homeland. I also have a lot of money saved. I’m old and I know when I die, if Davi gets his hands on money, he will get worse. Can you help?” This was new to me. It appeared that besides counseling, Branca also needed help from an elder law attorney who could provide the safeguards she was looking for.

So what can be done to help someone like Branca and hundreds of thousands of others in the same predicament? Well, I learned just how a trust could be helpful for someone like Branca.

Forming a Trust

When a trust is formed, it must have a purpose. In the case of Branca, the purpose was to provide her son with money from her will but try to keep him from spending it on drugs and in the worst-case scenario, killing himself.

Branca met with an attorney to discuss this and as a team, we provided her with financial advice and a plan to try and keep Davi under control, no easy feat if you are familiar with those with drug addictions.

The attorney told Branca that he felt the trust needed to play a part in Davi’s recovery. It could be passive (operating independently from any recovery activity) or an active role with a trustee (where funds would be used proactively to pay for treatment and any costs involved in that treatment). If an active role was chosen, there would be no distributions that weren’t related to the recovery efforts.

There was also a discussion about making any money distributions based on a series of incentives. This would be a series of goals as outlined on the treatment plan which needed to be accomplished. This, however, is wishful thinking and we will discuss why later.

The attorney handling this matter wanted to meet with me and the family to discuss how best to set up an “incentive” based trust, that, quite simply, paid Davi to stay clean and sober. As I told him then and will continue to say now, there are no incentives that work to keep an addict clean.

But Branca, like all family members, wanted to believe such a plan would work. She wanted Davi to attend counseling weekly, get a job and prove he was not using by urine screening. But who would be responsible for monitoring Davi? It certainly was not going to be our agency and as I explained, addicts can fake work records and urine screens, especially when it lacks the same safeguards as court-ordered screening.

And, I said, attendance at counseling is not the same as making progress in counseling. The overwhelming number of addicts who have been forced into counseling lack the motivation to take advantage of what they are being offered. Because it is not their choice, they might show up, but attendance at counseling is not the same as making progress.

And I told the attorney, those who know addiction and addicts are very aware of the outbursts and manipulation that occurs. But there is more to be aware of when it comes to developing the trust.

A Special Needs Trust

According to Attorney Connelly, there are reasons for substance abuse and special needs trusts and not everyone with a substance use disorder will qualify. “Many people assume that drug addiction is a disability, but it is not under federal law,” he said.

Although it once was, this was changed over 20 years ago. It was 1996 when the Social Security Act was amended to eliminate eligibility for disability benefits based on drug addiction and/or alcoholism. Prior to that date, individuals could get Supplemental Security Income (SSI) or Social Security Disability Insurance disability benefits if their alcoholism or drug addiction was so severe that it prevented them from working.

“The way the law works today is that a person cannot receive disability benefits if drug addiction or alcoholism is a material factor in their disability,” Connelly stated. “However, someone can be found disabled if the applicant has medical conditions that aren’t caused or made worse by the misuse of substances, or if damage has occurred that would not be reversed if the person applying for disability benefits stop using drugs.”

Some people think this is unfair, citing the fact that addiction has been classified as a disease, but there are a number of very good reasons why this change was made.

Why Addiction was Reclassified

Prior to 1996, addicts exploited the Social Security system with impunity. For example, alcoholics and drug addicts would receive their checks, spend it within a week on substances, then spend the rest of the month in detox until the next check arrived. Those of us who worked in the treatment field referred to it as the “Merry-Go-Round of Abuse”. It was predictable and made a farce out of those providing these services.

Even worse, retailers got in on the action as well. Homeless alcoholics often used a liquor store or bar as their “home address” so the proprietors could serve them and make sure they got their money when the checks arrived. The abuse was rampant. Changes had to occur and they did.

But even with these changes, ways have been found to work around "the rules". Today, those with addictions seek a diagnosis of a mental health disorder that, providers say, is the “cause” of the substance abuse disorder and not the other way around. If substance abuse disorder is viewed as the material contributing factor in the mental health disorder, they will not qualify.

Let's take a quick look at the system as it stands today and why trusts are important for parents who want to protect their children who are addicts as well as those who do not suffer from this disorder.

Providing a Safety Net

For a child over 18 who receives Supplemental Security Income (SSI) and Medicaid, all of which can help to pay their living and recovery-based expenses, losing this aid if an inheritance occurs could be detrimental to them in the long run.

A child with a chronic substance abuse disorder will eventually suffer other medical conditions that require treatment and will need long-term government benefits. Those who abuse intravenous (IV) drugs could end up with Hepatitis C, HIV/AIDS, various skin conditions, and other infections.

Long-term use of drugs like cocaine and crack can result in severe damage to the heart, liver, and kidneys with users are more likely to have infectious diseases. Chronic use causes sleep deprivation and loss of appetite, resulting in malnutrition. Cocaine also can cause aggressive and paranoid behavior as well as severe depression due to the changes in brain chemicals.

When it comes to alcohol abuse, the entire body comes under assault. Not only can drinking cause temporary complications such as memory loss and coordination problems, but it can also lead to long-term side effects that are sometimes irreversible.

Heavy drinking can weaken the heart, impacting how oxygen and nutrients are delivered to other vital organs in your body. Excessive alcohol consumption can increase triglyceride levels – a type of fat in the blood. High levels of triglycerides contribute to the risk of developing dangerous health conditions such as heart disease and diabetes.

Heavy drinkers are also at risk of harmful, potentially life-threatening liver problems including alcoholic hepatitis, fibrosis, and cirrhosis. The pancreas is also at risk as long-term alcohol abuse eventually causes the blood vessels around the pancreas to swell, leading to pancreatitis. This greatly increases the risk of developing pancreatic cancer – a type of cancer that spreads rapidly and is usually deadly.​

Women with addictions often turn to prostitution and may contract sexually transmitted diseases including Hepatitis B (a major cause of liver cancer) and HIV (which could lead to AIDS). Other STDs like syphilis and gonorrhea can result in pelvic inflammatory disease and additional complications.

So, you can see the importance of making sure that government benefits are not interrupted. Because SSI and Medicaid are needs-based programs with strict resource limits in place, should an individual lose these benefits because of an inheritance, it is very difficult to regain them if they become needed in the future.

Government Benefits Available

This year (2021), eligibility for SSI will entitle the child to receive a monthly benefit of $794 from the federal government and a smaller amount from the state to supplement this income (in Rhode Island, it is $39.92). Once SSI is approved, the child automatically qualifies for Medicaid, which covers many medical and counseling costs, and also makes them eligible for other community-based treatment and support services for the substance abuse disorder.

The second benefit that can be accessed by the child is Social Security Disability Insurance (SSDI), which pays a monthly benefit based on the applicant's work history. Eligibility for benefits depends, first, on whether the child has a “disability,” as defined by the Social Security Act.

As far as the government is concerned, it means that they are unable to engage in any substantial gainful activity because of a serious, medically determinable physical or mental impairment and that the disability has lasted, or is expected to last, for at least one year or to result in death.

For a child with a substance use disorder, they will not qualify for SSDI if the basis for disability is substance abuse and secondly, if they are claiming a mental health issue, they must show that the substance abuse did not contribute to that condition.

The next question is whether that child could work if they stopped drinking or using drugs. For example, if someone is claiming chronic pancreatitis or another condition that is recognized as a disability by the Social Security Administration, and it would not improve if he or she stopped drinking, then a disability may exist. However, should he stop drinking and a doctor feels that the pancreatitis would improve, then this condition would not meet the test for disability.

SSI and Medicaid eligibility also require that the child have “countable resources” that total no more than $2000. These assets include cash on hand (such as a checking or savings account), and assets that can be converted to cash.

There are many rules associated with putting together trusts and it is best to consult with an attorney when doing so because each state may have different rules. With the increase in addiction disorders, the need for developing a trust to deal with a child with such a diagnosis is gaining popularity. But remember, these trusts come with very strict guidelines, and for some family members acting as trustees, an emotional toll. Let's explore this further.

A Family Member as Trustee

So now let’s imagine that the trust is set up for the substance-abusing child. Who should be the trustee (the person or entity administrating the trust)?

There are two categories of trustees, individual and institutional. For an individual trustee, it is usually a family member or someone who knows the person. An institutional trustee could be a bank, agency, attorney, or financial advisor.

Now, let me say that I am not a legal person, so my comments at this point are based on my experience as a licensed addiction treatment professional with over three decades of providing services for substance abusers. It is my opinion that when administering a trust for someone with a substance abuse disorder, using an institutional trustee is the way to go. To understand why it's important to have a knowledge of the dynamics within a family where a member is an addict.

As a family tries to cope with the addiction of the family member, the unit itself is put under tremendous stress and begins to fracture. Although many families tend to focus on the addict, the often forgotten victims of addiction are other family members and the relationships that occur between them. The addict is quite adept at exploiting these stressed relationships and causing internal battles that can strain even the strongest bonds. Add money to this equation and it's like pouring rocket fuel on a fire.

One family I worked with from a town north of Boston best exemplifies what can happen when a family member is in charge of a trust or is a rep payee for someone with a substance use disorder. The addict, I’ll call Charles, had multiple relapse episodes despite the family’s best efforts to keep him clean and sober. Eventually, he moved in with his sister and her family and she became the rep payee for him.

The Chaos of Managing Money

All went well as long as Charles was told yes to his requests, but when the relapse occurred, the relationship went south in a hurry. Charles ended up stealing jewelry from his sister, a piggy bank belonging to his niece, and pawned tools were stolen from the garage that belonged to his brother-in-law. These behaviors caused a major rift in the family unit when the brother-in-law told Charles to leave the house and move into a homeless shelter, something his sister did not agree with.

Soon, Charles was calling the house non-stop, at all hours of the day and night asking for money from his SSI account. When his sister refused, he began to call her job multiple times daily that nearly resulted in her being fired. When his brother-in-law stepped in and threatened to obtain a restraining order, Charles backed off and instead began loitering around his niece’s high school, accosting her, asking that she convince her mother to give him money.

One afternoon, Charles became extremely aggressive, scaring his niece who ran back into the school fearing for her safety. The principal contacted the police and Charles was arrested and sent to detox and treatment. His sister gave up the rep payee position to an agency that specialized in this work.

“I love my brother,” she said, “but what he put me and my family through was sheer hell. He used every emotion imaginable from guilt to anger to get access to his money, even stating that my husband was spending the money on himself. It was something I would never want to experience again.”

These are the typical emotions that a family of an addict experiences - over years and sometimes decades. On one hand, the family understands how addiction can change a person but on the other hand, the constant lies, manipulation, and abuse that an addict can put their loved ones through on a daily basis results in immeasurable pain and untold emotional damage.

Even the act of love for an addict often turns to enabling behaviors. There is no family member that does not want to help a loved one when they are in trouble. This may range from lending money, paying rent or utilities, to other behaviors which allow the addict to continue with the destructive lifestyle. Often, enabling is the result of guilt about the loved one’s addiction and the enabler's feeling that they are somehow responsible, so they want to make things right. This emerged in another case I dealt with.

Addicts Using the System

A gentleman from the south coast came to counseling in an attempt to help his sister. Carl, a corporate executive, was the trustee for a special needs trust for his sibling, Anne, who was once a successful elementary school teacher before sinking into addiction with a boyfriend. Anne had been a crack addict for years and prior to her mother's death, a trust was drawn up not only to make sure Anne’s needs were met but also because they feared if she obtained a large sum of money, she would eventually overdose.

Addiction changes the smartest people

Carl was continually being harassed by Anne for money while he tried to live up to the rules of the trust. Eventually, Anne went to Legal Aid in Boston and sought an attorney, accusing Carl of misusing the funds. Not only did Carl not misuse the money, but he was forced to hire his own lawyer to deal with the accusations being tossed at him.

In the meantime, Anne enlisted some of her “street friends” to confront Carl when he was leaving the gym and even made threatening calls to his job. Still, Carl understood addiction, made excuses for her behaviors, and continued to try and support her. Anne ended up breaking into his house and stealing a coin collection and several valuable paintings.

In counseling, Anne was insistent that Carl was not “helping her” in recovery and did not support her when she needed it. Then came the turning point for Carl, he asked Anne why she stole the items and offered to forgive her if she just apologized for her actions.

Instead, Anne looked at Carl and stated, “At my last NA (Narcotics Anonymous) meeting, I heard a story about a guy who rescued a poisonous snake from drowning and when he put it down on the shore, the snake bit him. When the guy was dying, he asked the snake why he bit him after he saved its life. The snake said it was because he was a snake so what did he expect him to do.”

Carl looked at her and said, “Are you blaming me for all of this?” Anne sat back and said, without emotion, “Well, you shouldn't have shown me your coin collection. I’m an addict, you know what we do.”

At that point, Carl walked out and the next day turned over control of the trust to an attorney. Several months later, Carl told me it was the best decision he ever made.

The Best for Both Parties

These stories are just two of the scores that I have been involved with when family members attempt to be trustees or rep payees for addicts. What eventually happens is that the well-meaning actions of the family are exploited by the addict leading to resentments and additional family strife and in some cases, the overdose death of the family member with the addiction.

The strain placed upon a family member when trying to deal with and cope with an addict’s out of control behaviors and accusations cause other family members to lash out at each other and they eventually begin to engage in the same behaviors as the addict, including becoming manipulative, lying and stealing. It is a cycle that destroys even the most loving family.

Hopefully, I was able to convey the importance of appropriate planning for the disposition of one's estate when an heir has a substance abuse disorder. Not doing so can be disastrous for the family as well as the addict. The best solution is to work with an experienced elder law attorney to develop a plan that would protect the substance-abusing heir from unrestricted access to an inheritance. Further, for the well-being of all concerned, allow it to be administered by an outsider. The family also needs time to heal.

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