Using a Trust to Protect a Child or Sibling with a Substance Use Disorder
by Don Drake, Connelly Law Offices, Ltd.
"As stated in our last blog, October is National Special Needs Law Month. Special needs planning can involve special needs trusts, care management, advocacy to preserve educational or civil rights, public benefits such as Supplemental Security Income (SSI) and Medicaid, and many other critical issues affecting families and those with special needs," said certified elder law Attorney RJ Connelly III.
"An issue that is becoming more and more prominent in my practice is providing financial oversight for a child or sibling with a substance use disorder. Let's face it, it's hard not to find someone who has not been impacted by an individual they care about who has a substance abuse problem and, in most cases, an accompanying mental health diagnosis," continued Attorney Connelly.
"The question then becomes, how do parents or other loved ones deal with estate planning when it comes to inheritance distribution, acting as a trustee or rep payee for an adult child who is a substance abuser? Just how do you provide for them without enabling their drug use? In honor of National Special Needs Law Month, we are going to discuss this by repeating a blog we published some time ago that deals with this very subject."
A Family Struggle
When an elderly Cape Verdean woman entered my office (the author) 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 deceased 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 regular weekend visits to the emergency room where she often lay close to death because of an overdose of heroin.
“Every week, I get called and need to go to the hospital. She died so many times but was saved by the doctors 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.
"My girl, she's buried about a mile from here. I'm at peace now because I know she is at peace...I know where she is all the time now."
Then came a startling but understandable statement. “My girl, she's 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 gave 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,” explained Branca, “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. Branca did not need counseling. What she did need was advice from an elder law attorney who could provide the safeguards she was looking for.
Legal Help Not Counseling
What can be done to help someone like Branca and hundreds of thousands of others in the same predicament? Putting a trust in place appears to be the appropriate choice in these situations, but it must be the correct type of trust and the attorney developing it must have knowledge of the issues associated with substance abuse.
When a trust is developed, it must have a purpose. In the case of Branca, the purpose was to provide her son with money from her estate but try to keep him from spending it on drugs and in the worst-case scenario, killing himself due to an overdose. 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 a 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 were 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 in the treatment plan which needed to be accomplished. This, in my opinion, would be wishful thinking.
"...who would be responsible for carrying out the implementation and monitoring of the rewards-based interventions needed for a substance abuser outside of the treatment environment?"
The attorney handling this matter wanted to meet with me and the family to discuss how best to develop an “incentive” based trust, which, quite simply, is bribery for Davi to stay clean and sober. As I told the attorney then and will continue to say to anyone who uses this approach, there are no incentives that consistently work to keep someone with an addiction clean long term, and even if it did work, who would be responsible for carrying out the implementation and monitoring of the rewards-based interventions needed for the individual outside of the treatment environment?
Let's digress for a moment and discuss this approach. In the behavioral health treatment field, this type of planning is called contingency management (CM), and although this may have some success when a person is in a residential treatment program where an artificial and controlled living environment exists that allows the individual to earn privileges based on designated behaviors and clean urine screens, there exists limited evidence that such programming is successful in the "real" world. In a 2019 study, "Examining Implementation of Contingency Management in Real-World Settings", results were mixed at best with many shortcomings cited with the way programs were implementing CM and the lack of consistency in such implementation among providers.
Using an incentive-based trust, from a practical standpoint, would be impossible to manage and enforce outside of the controlled institutional environment. For instance, who would be responsible for managing the conditions of the incentives, which would require, at