Dealing with mental health issues in estate planning

09-17-2019
Dealing with mental health issues in estate planning

A successful plan requires breaking the silence

 

One of the benefits that a trust and estate lawyer like myself enjoys is that we deal with people of every background, age, and personality type and often in very profound ways. In short, we encounter all the diversity that humanity can offer. We see many family situations which gives one perspective and a broad awareness, and we hold the confidence (and confidences) of many in our role as a trusted adviser. This includes dealing with the challenging mental health issues of our clients and their family members from a legal perspective in their estate planning, and offering solutions to often perplexing and thorny issues.

One critical issue is first recognizing, then acknowledging, and finally constructively dealing with the reality that many of our family members suffer from an illness – not a physical one, but a mental illness.

Statistics show how common mental illness is. It is estimated that one in five Canadians have or will have a mental disorder in their lifetime. The old taboos of the past, based on lack of awareness and understanding, need to be set aside and open discussion embraced in order to deal with mental illness in a helpful and common sensical way for everyone’s benefit – the family member who has a mental illness, as well his or her family members. It takes a lot of courage to face the facts and to break the silence in the face of historic taboos, but ultimately doing so allows everyone to manage these issues, while supporting and dignifying the family member who suffers from a mental illness.

Many of our clients’ spouses, children and grandchildren have special needs because of their mental illness and these must be carefully considered in the estate plan. For example, it is not always known whether a child or teenager who is bipolar or autistic will be financially capable and independent when they are an adult. Parents need a flexible structure under their wills, often using a trust with appropriate provisions that not only give trustees discretion to pay income and capital for their child’s benefit, but also the ability to terminate the trust should the protection of a trust not be necessary when their child reaches a more mature age. A companion letter of wishes to the trustees can provide helpful guidelines for their consideration in exercising their discretion.

What is important is that parents acknowledge their child’s potential special needs and address them in their planning in order to act in their child’s best interests. The same holds true when a spouse needs protection whether due to dementia, manic depression, schizophrenia, or other mental illness. Denial is not helpful, but it is often the case that a spouse in dealing with their loved one in the context of their own planning must walk a fine line (see our advisory on planning for the family member with special needs).

The more we all speak openly about mental illness, the better for all. Anyone with an illness deserves to be respected and supported, and any stigma about talking about mental illness makes the situation harder for the family member with a mental illness and their family members and reinforces outdated attitudes and taboos.

As we head back to school and to our workplaces after all the joys of summer come to an end after Labour Day weekend, let’s make a point to break the silence and talk openly about mental illness and move forward to do our part to raise awareness about it.

Margaret O’Sullivan is the principal of the Toronto-based trusts and estates law firm O’Sullivan Estate Lawyers. She practices exclusively in the areas of estate planning, estate litigation, advising executors, trustees and beneficiaries, and administration of trusts and estates. This article originally appeared in the O’Sullivan Estate Lawyers blog. Reprinted with permission.

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