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Planning for Family Members with Mental Health or Substance Abuse Issues During COVID-19

April 1, 2020

During this prolonged stay at home period to fight the spread of the coronavirus, many people are grappling with the mental health risks that COVID-19 presents along with the medical risks. The combination of the social isolation and sensational media coverage can trigger waves of anxiety and depression. For those with family members who struggle with mental health issues, substance abuse issues, or a combination of the two, the current situation can be especially trying and leave them feeling helpless.

There are several steps parents can take to create a plan that will encourage their family members to stay safe and healthy, while still maintaining an appropriate level of control over their personal lives and finances during this pandemic. Putting a plan like this in place only takes an hour or two, and can be done on a phone call or video conference with a skilled attorney.

While the plan should be tailored to your specific adult child and family circumstances, there are several key documents which are usually part of a plan.

Health Care Proxy: Once children turn 18, parents generally are not allowed access to their adult children’s medical records and cannot make medical decisions for their adult children. An adult child can give their parents this authority by executing a Health Care Proxy which includes a HIPAA authorization to allow parents to access medical records. The Health Care Proxy allows parents to make medical decisions for their adult child if the child is unable to make his or her own decisions due to a physical or mental impairment and is an especially useful document to have in place during the COVID-19 pandemic.
Durable Power of Attorney: The Durable Power of Attorney can be effective immediately upon its execution by the adult child and can authorize either or both parents to make financial decisions on behalf of the adult child. The scope of the financial decisions can be broad or narrowly tailored based upon specifics of the adult child’s situation.
- A Durable Power of Attorney can be very useful for adult children who are in college. Parents are often surprised to learn that the Family Educational Rights and Privacy Act (FERPA), prohibits colleges from releasing any information regarding their adult child’s education records once the child turns 18. This document can help with home schooling during the COVID-19 shelter period.
- A Durable Power of Attorney can include language which authorizes parents to access their adult child’s education records under FERPA. When adult children are struggling in college due to mental health or substance abuse issues, we have had clients use the FERPA language in their adult child’s Durable Power of Attorney to work with their adult child’s college to convert a failing grade to an incomplete to allow a child to retake the course when they are mentally or physically able.
An Incentive Trust: Parents can use “incentive” Trusts to encourage their adult children to make mature decisions and rewards them for good behavior. The Trust is a written document which names a Trustee, who is responsible for carrying out the terms of the trust. The terms of the Trust would contain the “incentive terms,” which would instruct the Trustee to distribute specific sums of money or gift cards and merchandise credits to the adult child when the adult child performs certain positive and/or mature actions.
- Although one or both parents can serve as Trustee of the incentive Trust, it is often advisable for another family member (such as an aunt or uncle) or a trusted advisor (such as a lawyer) to serve as Trustee to prevent any friction or additional strain upon the relationship between adult children and their parents. Our Private Client Group attorneys often serve as Trustee of clients’ incentive Trusts, and we are well-versed in negotiating this challenging role.

While implementing this plan may not eradicate the issues that triggered an increase in substance abuse or mental health issues, families can have peace of mind knowing they have created a clear and effective plan that will both encourage their family members to stay safe and on track while protecting their medical and financial circumstances during these unprecedented times.

About the Authors: Lisa Cukier and Nikolaus Schuttauf

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.

An associate at Burns & Levinson, Nikolaus focuses his practice on Trust and Estates, where he helps families and businesses plan for the unexpected. Nikolaus helps clients create estate plans that take care of spouses and children, protect assets, and minimize taxes. For business owners, he takes the guesswork out of legal issues and develops plans that coordinate with the client’s estate plan, ensuring a cohesive arrangement. He can be reached at nschuttauf@burnslev.com or 617.345.3280.