Serious Mental Illness and Estate Planning for Your Family

 

This blog post is from Mary Grace Godfrey, Regent Law 3L and current Wills, Trusts, & Estates student:

According to the Centers for Disease Control, more than half of the United States population will be diagnosed with a mental illness or disorder at some point in their lifetimes.  In a given year, 1 in 5 adults will experience mental illness. Less likely, although not comfortingly so, is the chance that you or someone you love will be diagnosed with a serious mental illness. 1 in 25 Americans lives with schizophrenia, bipolar, or major depression.

Although conversations about mental health have finally become nearly as prevalent as those about medical health, much remains shrouded in mystery. And, serious mental illness has faded into the background, with most mental health challenges consisting of diagnoses that are infinitely more treatable and less permanent.  

My mother has lived with bipolar disorder for most of her adult life. About five years ago, she was diagnosed with bipolar schizoaffective disorder and is today under hospice care, for what might best be explained as end-stage mental illness. In August of this year, she became incoherent. I have not, nor do I anticipate, being gifted another meaningful conversation with her in whatever time she has left.  

Caring for a person who is seriously mentally ill is complicated but there are several estate planning documents that will help your family care for a mentally ill loved one. There are a number of options to consider, among them: Durable Powers of Attorney, Springing Powers of Attorney, Advanced Directives, Medical Powers of Attorney, Revocable Living Trusts, Discretionary Trusts, and Supplemental Trusts.

It is easy to be lulled into complacency when your loved one is doing well, when their disease or disorder is well managed, and they are able to participate fully in life. The best time to establish these instruments is exactly when you will be most tempted to avoid taking these actions. But putting it off for a rainy day might result in costly efforts to obtain the rights to care for your loved one after capacity is lost.

Mental illness is challenging not just because of its impact on your life but because of its unpredictability. Serious mental illness tends to be episodic, prolonged, and recurrent in nature.  No matter what your needs are today or may be in the future, one of the most important things you can do now is to set about providing for the next episode. While it may not feel like it, taking these affirmative actions is a powerful way that your loved one can take control over how he or she will manage an illness that stands to rob him or her of that ability in the future.

It is only because my family was concerned about how and who would care for my mother, after my father’s death, an event we always assumed would come first, that an estate plan was in place when she lost capacity for the final time at the tender age of sixty-four.