If your child is mentally disabled, has a substance abuse problem, or is just plain irresponsible, you may be thinking about how to protect your child from himself or herself and how to set up your estate to minimize the risk that your whole legacy will fly out the window.
You might attempt to gain conservatorship over your child. For persons with clear-cut mental disabilities, including developmental and cognitive disabilities and injuries impairing brain function, conservatorship is a viable option. Conservatorship makes the Conservator the legal representative of the Conservatee. The Conservator receives and manages all assets and income of the Conservatee. If the court’s order specifies it, the Conservator may make medical decisions for the Conservatee and confine the Conservatee in a locked facility.
It is difficult to obtain conservatorship over a person with a substance abuse problem or the kind of mental illness that affects only judgment, such as bipolar disorder. This is because our probate court system, which oversees conservatorships, starts from the premise that an individual’s right to make his or her own decisions, even terrible ones, must not be infringed except in the most extreme circumstances. Conservatorship is, unfortunately, rarely available to force a person to stay in drug rehab or even to take medication to control bipolar disorder symptoms.
But you can control whether and to what extent the problem child has access to your money. You are free to plan your estate so that a Trustee will manage all assets you leave for your child. You can set up a Special Needs Trust, which preserves your child’s ability to qualify for public financial resources, but is also there to give your child assistance when your Trustee deems it appropriate.
Some parents put strict sobriety requirements into their estate plans. These parents have already spent years trying to help a drug-addicted child get clean and sober, only to see the child throw it all away as soon as he or she gets a chance. In the estate plan, the parents require the Trustee to randomly test the child for drugs for some period of time – maybe three months or three years – and the child must be 100 percent clean and sober before the Trustee distributes funds to or for the child.
Every family is different, so every estate plan dealing with the “problem child” is different. When determining whether to attempt to obtain conservatorship over your child, or figuring out what kind of restrictions on access to your assets will be effective, you should seek an experienced professional’s advice.
For inquiries regarding your difficult or contested estate and trust matters, please call us at 661-259-7930.