Legal Services to Consider when Dealing with Mental Health or Substance Abuse Issues

April 8, 2020

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Mental illness and substance abuse issues can affect anyone regardless of age, gender, marital status, socioeconomic status, and occupation. It is not uncommon for individuals who are struggling with their mental and emotional health to be aware that they need assistance but not know where to turn. The COVID-19 pandemic, economy, and unprecedented social isolation measures may initiate or exacerbate these feelings. If you or a family member grapple with substance abuse or debilitating mental and emotional health issues, there are legal services available (even during the pandemic) that can lend exceptional assistance and support.

Trustees: Attorneys serving as Trustees will work with a client in a hands-on manner to establish an estate plan that will fulfill a client’s intentions after death but will also accommodate a client’s needs during lifetime. For example, a client struggling with mental illness or substance abuse may create a trust for his or her benefit during the lifetime of which an attorney will serve as independent Trustee. In this way, a Trustee can protect your money from an episode of mania or addiction-influenced waste of assets. The attorney serving as independent Trustee has flexibility to make distributions to or for the benefit of the client in the independent Trustee’s discretion.  The lawyer serving as Trustee can incentivize treatment with cash distribution, and can provide credit cards and ATM card accounts to promote independence over a smaller and finite portion of the overall assets.

The Trust may also be drafted such that the client is the initial or a co-Trustee, but upon a writing signed by the client’s physician attesting to the client’s inability to serve as Trustee, the independent Trustee will assume full control of the Trust assets for the client.

Agent under a Power of Attorney: Clients will often name an attorney as attorney-in-fact under a Power of Attorney. A Power of Attorney is a document which allows a thirty party (i.e. an “attorney-in-fact”) to make financial decisions on behalf of an individual during the individual’s incapacity. There are two primary types of powers of attorney:

1. Durable Power of Attorney: goes into effect when it is signed and remains in effect upon an individual’s incapacity.
2. Springing Power of Attorney: while signed by an individual when the individual has full capacity, it does not go into effect until the individual is incapacitated. This can be useful when mental illness or addiction relapses.

As attorney-in-fact under either of these documents, an attorney will work with a client’s physician, family members or even friends, to determine when and if it is necessary for the attorney to assume financial responsibility as attorney-in-fact on behalf of a client. For example, during capacity, a client may sign a Springing Power of Attorney and alert his physician that he has appointed someone to make financial decisions on his behalf when incapacitated. If the client experiences a period where he is unable to act on his own, for example, a period of mania, depression, psychosis, or a relapse of substance abuse, the clinician will contact the attorney-in-fact and the Springing Power of Attorney will go into effect allowing the attorney-in-fact to pay the client’s bills, purchase items of food, clothing and household goods for the benefit of the client or provide the client with enough money to do this himself, all while securing the bulk of the client’s assets.

Guardian or Conservator: A guardian is a court-appointed individual who is responsible for making decisions relating to an incapacitated individual’s health, safety and self-care. As a court-appointed guardian for a client, an attorney is responsible for making decisions in interest of the client’s well-being. In making such decisions, an attorney may have access to a client’s medical records and may be able to encourage hospitalization if it is in the best interest of the client, even if the client does not want treatment. Attorneys frequently appear in court on emergency guardianship motions initiated by an individual’s family members or friends and we continue to represent clients telephonically during the COVID-19 pandemic.

A conservator is a court-appointed individual who is responsible for making financial decisions on behalf of an incapacitated individual. Attorneys frequently act as conservator for individuals who are unable to manage their assets. In this way, attorneys can assist clients in managing their financial affairs at a time when they may need temporary limited help, and in a manner that provides extra protection, accountability and oversight.

It is important that people feel a sense of comfort and security during these exceptionally trying times. If you or a friend or family member believe that you need assistance managing your person or your assets, the attorneys at Burns & Levinson are available to assist.

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About the Authors: Lisa Cukier and Patricia Malley

Lisa Cukier is a firm partner and Executive Committee member. She concentrates her practice on all aspects of estate and trust litigation, fiduciary litigation, probate law, child custody, parentage issues and divorce, planning and litigation for blended families, adoption, guardianship and conservatorship, and elder financial exploitation. Lisa serves as private adjudicator, Special Master, Guardian ad Litem, and mediator. She can be reached at lcukier@burnslev.com or 617.345.3471.

Patricia is an associate in the firm’s Private Client group and advises clients on trusts and estates matters. Her practice includes work in estate planning and all aspects of the estate administration process. She can be reached at pmalley@burnslev.com or 617.345.3631.