Elder Law Report
Elder Law Report
Estate Planning with a Focus on Mental Health Protection
Ever wondered how to navigate the often-overlooked complexities of mental health in estate planning? Well, worry no more. Your hosts, Greg McIntyre and co-host Attorney Samantha Gordon ("Sam"), delve into the heart of this matter, breaking down the crucial differences between healthcare powers of attorney and mental healthcare directives. You'll come away with a profound understanding of how to ensure your estate plan meticulously covers both physical and mental health components, and how this can be shaped to reflect your personal health care preferences, be they holistic or conventional. Especially poignant for those with aging relatives or loved ones with special needs, this episode sheds light on the delicate balance between providing financial support and preserving eligibility for government benefits through the strategic use of special or supplemental needs trusts.
In our discussion, we underscore the significance of astute estate planning in protecting not just your future but that of your children and grandchildren from the snarls of guardianship and probate. If you're seeking guidance on crafting an estate plan that stands as a bulwark for mental health care, our episode extends beyond mere legal advice. We offer a compassionate invitation for a free consultation to tailor your estate planning to your unique circumstances, ensuring that you and your family can face the future with confidence and tranquility. Join us, and equip yourself with the knowledge and resources to craft an estate plan that truly caters to the full spectrum of healthcare needs.
Welcome to May Mental Health Awareness Month. I'm Greg McIntyre with McIntyre Elder Law and this is the Elder Law Report and we're going to talk about mental health issues in estate planning, and there are myriad, so, sam, mental health issues in estate planning we could talk about and we'll talk about, special needs, trust, supplemental needs, trust within wills and trust how mental health care powers of attorney or directives are different than health care powers of attorney and directives and can cause problems if you don't have both or combine them and have both those elements in there and much, much more both those elements in there and much, much more. So tell me about healthcare powers of attorney and mental healthcare directives or psychiatric care directives and how they differ and how we solve that problem.
Samantha Gordon:Sure. So a healthcare power of attorney is a legal document where you can appoint an agent, someone that you trust, to make your healthcare decisions for you, specifically if you become incompetent. So if you become incompetent cannot make your own healthcare decisions such as second opinions from doctors, medical treatment, whether you want an autopsy, burial, cremation that's all encompassed within the healthcare power of attorney. So it's a very generalized medical legal document that appoints someone to handle all of your medical affairs, whereas a mental health directive or a mental advanced directive that's going to specifically state do I want these type of treatments or psychiatric treatments if something were to happen to my mental health? So it's very specialized as to what may be going on mentally.
Greg McIntyre:I feel like people are in general, skeptical or hesitant to give someone else the ability to handle mental health care treatments for them. I personally have had lots of clients. I have experience with lots of clients that have, as they aged, had issues, which is not uncommon. Period One in five adults have mental health care issues in America and as we age, with dementia, alzheimer's, there's a mental health component of that there really is and it can be misdiagnosed right, you know there can be.
Greg McIntyre:It can be hard to diagnose what the actual issue is whether it's a mental health issue that's independent of what's going on with an Alzheimer's dementia diagnosis, or or or situation. So you know, if you don't have a mental healthcare power of attorney that's separate from the healthcare power of attorney and your healthcare power of attorney doesn't have those components within regarding mental healthcare, which is a separate statute in North Carolina than the physical healthcare, then you're stuck. You don't have someone that you've equipped to help you treat your whole self, body and mind. So I'm a big fan of and that's the way I like to write the health care powers of attorney, and that's the way I like to write the healthcare powers of attorney is to include those statutory references and sections to mental health care, power of attorney, and then we also allow people to limit the choices or what powers they give someone else as well. Yeah, I think you know Morgan, who's filming us today, had mentioned before one real concern.
Samantha Gordon:Electroconvulsive therapy.
Greg McIntyre:Yeah, electroect.
Samantha Gordon:Yes, Electroconvulsive therapy right.
Greg McIntyre:Mm-hmm, and so if you wanted to limit, so if I were making you my health care agent for mental health and physical healthcare purposes, I can limit you from being able to administer ECT to me.
Samantha Gordon:Or psychiatric drugs too.
Greg McIntyre:Or psychiatric drugs. I might want counseling or other therapy and treatments, but not powerful psychiatric drugs.
Samantha Gordon:Especially if you like to treat any type of sickness or medical condition you may have holistically as well. You want to be able to have those special limitations where we're not just jumping right into this super harsh drug. Where there's other options, maybe holistic options, that can be, know we're going into the more harsh treatment.
Greg McIntyre:So if I'm your client and I'm telling you, hey, that's my philosophy, that's that's kind of how I run my health care life, and you know more on the holistic side and you know, let's say maybe at some point if all else fails, let's go for these drugs. Fails, let's go for these drugs. Could you write a mental health care section in a health care power of attorney for me that would allow me to fulfill my wishes.
Samantha Gordon:You could. There's a special instruction section in the health care power of attorney that would allow you to specifically put that in and limiting the ability of what your health care agent can do to make sure that what you want is going to happen.
Greg McIntyre:Right, and I think we're capable of playing jazz as well and doing some legal writing there, right? Yes, to specifically craft the powers the way that it's tailored to you. That's how we want to do it. What about if I have a special needs family member? If I have an autistic child or grandchild? Or, as I like to say, I'm very blessed. I have six children that are all healthy, but if one of them is in any way physically or mentally disabled at any point in their life, or a grandchild, I don't know what the future holds. So I want to be able to account for that, either to take care of a current child or grandchild If something happens to me, maybe financially okay, to make sure there's some money set aside. And we have some real special concerns there, which are if someone is disabled and they have, they're drawing disability, but SSI, which is means tested, it's dependent on a lot on your assets and income and I want to make sure that that child, grandchild, might have elevated healthcare needs and costs.
Greg McIntyre:So with SSI comes along with it a Medicaid healthcare component. They go hand in hand. How do I prevent? And I want to leave them something, but that's like how do I solve that problem that I want to provide for them but I don't want to hurt their benefits and I don't necessarily just want to give it to some other family member and just say, hey, spend this on this child over here, just hoping that that happens. I want to make sure that happens.
Samantha Gordon:What I'll do in a consultation is I'll walk a client through.
Samantha Gordon:If you just have a will and you're just leaving these assets to this child, you're putting them in a tough situation.
Samantha Gordon:Even if they're not on government benefits right now, they may need to be eligible in the future and you don't want to leave those assets just to an individual. Because if you leave those assets to just another individual, it's their assets. They could do whatever they want with it. There's no provisions that tells them how they're supposed to spend that money. So you can do a special needs trust where it puts the money in a pot for the benefit of this individual and it makes sure that the trustee, the person that you have named, is going to administer that money appropriately for that individual, whether they need to become eligible for government benefits, whether they're on government benefits, so they don't get disqualified, making sure that their care and maintenance is taken care of, that their needs are being taken care of. That's the whole point of a special needs trust is to put this money in a pot specifically for this individual, with a trusted person handling that money for them and making sure that their government benefit is not disqualified.
Greg McIntyre:Now I can do that during my life. I can set up a third party special needs trust because it's being funded by a third party me for the use and benefit of this child or grandchild, for example, or and that's. I think there's benefits to that because I can name that special needs trust Even if I don't have the assets that I want to put there. Say, I have life insurance and that's the beneficiary, or I have other investments and I want to make that trust the beneficiary.
Greg McIntyre:It has to be an existence for me to be able to do that, yep, but I could create trust coming out of my death, right After I'm gone, and I could do that either in my will a testamentary trust, tomato, tomato or I could do that in a trust as a sub-trust, and that would be called a supplemental needs trust. So I can essentially accomplish the same thing after I'm gone and because I don't know when and if one of my children or grandchildren will become disabled, I might want to add that provision in a will or trust. If I draft it, yeah, and I'll advise that.
Samantha Gordon:Yeah, I'll advise that to clients. So a testamentary trust is great. If you don't know, if there's a possibility.
Samantha Gordon:So I'll have a younger couple come in and then we'll have their parents come in and grandparents are super excited they're going to have their first grandchild or their second, and usually what I'll say is, as you're having more grandchildren, if you want them to be included in your estate plan, really coming in, reviewing your documents and making sure that things are going to reflect what you need. So if there was a situation where maybe one of the grandchildren did have special needs, we want to make sure that that's accounted for in your estate planning.
Greg McIntyre:Sure, absolutely so. Are there any other issues that you think are relevant to discuss that we need to bring out in our video today? Our Elder Law Report addressing mental health awareness?
Samantha Gordon:Yeah, I would say that if you have a child.
Samantha Gordon:I'm coming from experience where I have a case right now where biological grandparents adopted their grandchild and unfortunately he has been experiencing some mental episodes where they thought it was teenage rebellion but really it's psychiatric and they really don't know what to do.
Samantha Gordon:He's unwilling to sign any type of documents, such as a health care power of attorney, which would appoint them to be able to have legal authority to help him. So they've had to go the guardianship route, where we have to ask the court for the grandparents, now that he's over 18, to become his guardian so they have some legal authority to make decisions for him. When he's having these mental episodes and he's going to the hospital, the doctors are not talking to the grandparents because they don't have legal authority to talk to them. So sometimes, unfortunately, a guardianship route may be an option that you have to go down if that situation would arise. So that's an option that you have available so you're not just kind of you know, don't know what to do, or there's no options. There always is an option. It may not be the best option, but at least it allows now these grandparents to have some type of legal authority to help their grandson, who they love dearly.
Greg McIntyre:And you know super important issues. The encore point would be avoiding guardianships.
Samantha Gordon:Yeah.
Greg McIntyre:Especially on the financial side and core oversight and the expense of annual accountings lawyers. You know we handle a lot of that. You can avoid that with special needs trust and supplemental needs trust by having a third party payee for the SSI benefit, which doesn't require a guardianship, and then having the other monies in the special needs trust. Then there's no need for a guardian over the estate and there might still be a need for a guardian of the person which is a different part of guardianships to handle just healthcare care, health care decisions and placement things like that. You know where someone lives, living situations, but that's a great way to avoid again guardianships as well.
Greg McIntyre:I feel like we, like I continually repeat points about avoiding guardianship, avoiding probate and those things Engaging in estate planning, especially in regards to things like mental health care, is extremely important, not only for yourself, but also for your children and your grandchildren. I'm Greg McIntyre with McIntyre Elder Law and we'd be glad to consult with you and your family about your estate planning. Take advantage of a free consultation by calling 1-888-999-6600, or you can schedule online on our website at mcelderlawcom. Thank you.
Samantha Gordon:Thanks.