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Drug Use and Abuse
My parents are writing their wills and are experiencing a
dilemma regarding how to deal with my brother. He is a homeless
drug addict, with a habit so bad that he hasn’t worked in two
years. My parents do not want to leave him money to fuel his
habit however; if he becomes clean they would like him to be
taken care of. They were thinking about writing a provision into
their wills that would set aside money for him until he was
clean. When he could prove he is clean, he could get the money.
The question they are wrestling with is how to determine if he
is clean. They would like a neutral party or a drug counselor
determine if he is clean but they are not sure how this can be
administered. The have also considered requiring that he be
tested for drugs but this has drawbacks (such as being off drugs
just long enough to pass a test, etc.)
Is anybody else familiar with this type of situation? If you
have similar experiences regarding writing wills and an addict
child they would appreciate your advice, particularly if you
have experience with writing some kind of “sobriety provision”
into a will.
My parents were in the same situation as yours. They did not write a
sobriety provision into the will. It would have just been too difficult
to judge whether or not my sister was clean, how long she had been
clean, or how long it would last. And the courts somehow would need to
be involved in this judgement, which seemed fraught with problems.
Instead, we made an agreement that my brother and I (the two other
siblings in our family) would share our portion of the inheritance with
her if she cleaned up and could use the money for good. This of course
requires that you and any siblings would be able to work this out among
yourselves, and that you save some of the money for your ill brother in
case the opportunity comes up for him to use it.
How about setting up a living trust? They can give him a portion at a
time, say monthly/quarterly living expense, if he proves himself clean.
It costs more to set up a living trust than a will. But I think it's
worth it especially if the beneficiary can be irresponsible. We do have
a family member in that category. However, your parents will need to
find someone to be the trustee to review the drugfree proof and then
distribute the money. It's better to iron out the detail as to how they
want to prove it. Better talk to an estate attorney for advice.
I knew someone whose son had impulse control issues due to a brain
injury. He was going to able to live independently but would not have
been able to manage a large amount of money. They set up a trust with
an executor to dole out the money under preset conditions. I also have
a friend from a large family where all the
(many) siblings apply to a panel of executors for money from their
family trust (some purposes are OK; others are not).
I wonder if your folks could do something similar, leaving an executor
(a lawyer or other neutral party, not you) to manage a trust from which
your brother could petition for money for particular purposes or seek to
become eligible for a preset annual payout. Your parents could leave
instructions about the terms of distribution as well as standards for
monitoring his sobriety. Not distributing the money all at once might
be an advantage in this case; if he became sober for a year or so and
then fell off the wagon, he would have a financial incentive to get
As someone with a very close family member who lived with ongoing and
varied drug addictions her entire life and up to her death at 56, I have
to say that there is no one who is going to be able to certify your
loved one as ''clean,'' because the risk of relapse is always so high. A
person's blood may be clean for a short or long time, but, like they say
in AA, once an addict always an addict. Also, knowing there would be
money involved, the addict could become clean just long enough to get
A life of drug addiction neccessitates getting drugs, which turns a
person into a master con man/woman with finely honed skills at
manipulation. My suggestion would be money left earmarked for very
specific purposes ... can only be spent on education, or housing, or
therapy even! An executor who can be sure the money goes where your
parents want it to can be arranged somehow, I am sure, and then they can
have peace of mind that they are leaving something to their child, if it
can help him, but not supporting his drug habits.
Also Anonymous, Please.
One method might be to set up a life estate and mandate that he only be
given the income from this estate, and further that the income be
allocated specifically to expenses such as housing, food, clothing,
medical treatment etc... Even sober these are real expenses that could
be offset. They could further name his children (should he have any) as
heirs to the estate upon your brother's death.
In setting up an estate, a corporate trustee should be named so that no
relative or friend is put in the ackward position of emotional appeals
or family disputes over the judgement of the individual. Hope that
helps a bit. Good luck.
This is the kind of thing an estate planner *should* know how to do.
Basically, this is one of the reasons why there are trusts.
There are also people who administer trusts for unstable adults.
If the person doing the trust for your parents isn't familiar with this
sort of thing, they need to call around to find someone who works in
You should be able to cause the money to be administered for his benefit
(pay rent, pay doctors, etc.), but not available for drugs or general
Our family has used a lawyer named Ferguson (office on 5th street)
concerning issues with my bi-polar brother-in-law, and he has had useful
Your inquiry is pretty common, sadly. Your parents should find a good
estate planning attorney who will likely advise them to set up a
spendthrift trust. They will have to determine who they want as the
trustor of the trust. That person will be in charge of policing the
money and the conditions within it. In these situations, often it is
better to hire a 3rd party to be the trustor. The attorney will know the
companies available to do this. If your parents are in California you
can contact me and I can provide you names of estate planning attorneys
if you like. Good luck!
Have your parents contacted an estate planning attorney? We created a
special fund in our will for a mentally ill relative.
The attorney we've used is Margaret Roisman. Her office is in downtown
Oakland. Her number is 510 466 6000.
I cannot give you specific legal information, but I can offer advice in
dealing with addict brothers/sons. Your parents can put any kind of
requirement they want in their will, but the chances of an addict
getting sober and staying that way forever is low. There's something
close to a 90% recividism rate for addicts at some point in their life.
So even if he does get sober, passes muster, and gets the money, you all
should understand that it may not last forever. Addiction is a disease
that has dormancy and reemergence throughout a person's life. I don't
mean to be a wet blanket, but I do want you all to have reasonable
expectations. I learned this the hard way when my brother got sober for
a second time and then fell of the wagon
3 weeks later and died. Good luck, and I wish you all the best.
my parents have the same issue (with 2 of us!). my mother made a trusted
family friend the trustee of all of my inheritence ( i have been clean
for five years). my younger sister, who is still using, has been
basically dis-inherited. my parents left her a small token amount so she
cannot contest the will.
now, obviously, drug addicts are very good at being convincing, if your
brother tricks whoever the trustee is, then, really, what can you do?
it's out of your and your parents control.
i do not recommend you being your brother's trustee, as families tend to
be a little..hmmm...biased.
good luck to you, your parents and your brother.
Consider having them call Maurice Kamens( Kamins, Kamin?) MSW at his
office in SF. He cousults with families about addiction. They might tell
him over the phone their situation and ask if he thinks he could advise
them. He's an honest guy and he'll say if he can give them any advice
What your parents need is to talk with a lawyer to make sure the
inheritance device they choose will meet all their desires and the
circumstances. They should probably think about setting up either a
living trust, or a will, that contains what's called a ''special needs
trust.'' That way, when they die, someone they name will be in charge of
deciding how and when the money can be used for your brother. The beauty
of doing it this way is that a trust is extremely flexible, so they
don't have to anticipate the future. (Maybe your brother shouldn't ever
get all the money, but just an income? Or maybe sometime a substantial
payment out of capital would be appropriate for treatment? Or to help
him set up a business?)
A living trust can be cheaper and easier in the long run: the trustee
doesn't have to get court approval for decisions, while under a
testamentary trust (a trust arising under a will) they may have to get
court approval, and they may also have to do an accounting to the court
once a year. Another advantage of a living trust is that, as your
parents get older, they can turn their affairs over to others without
needing an expensive court- approved conservatorship, and without
creating the bad tax consequences that can occur when children get added
to title or are given substantial property as a gift instead of getting
it as an inheritance.
My parents used Michael Ferguson (548-9005) in Berkeley to set up their
I am 36 weeks pregnant with a toddler and left my husband of 13
years a few months ago after I found out he was using crack.
I have been through a lot of counseling and attend family
I have moved 400 miles away from my husband.
He has since gone into recovery and recently relapsed, but went
right back to his recovery program. I understand that he is has
an illness. I am no longer full of anger and resentment. I do
love him and hope our family can reunite someday after he is
well on his way to recovery.
My question is for family members (spouses) who have been
through this or are going through this. What boundaries have
worked for you? What hasn't worked? Any advice...
I am just desparate for people who understand this process.
I cannot speak as a spouse, but as someone who has
experienced drug addiction myself, and who has been
through relationships with many addicts clean and using as
well as working in the recovery field, I can tell you that there
is very little you can do to influence his behavior, and that his
recovery is his responsibility. Therefore any boundaries
you set should have to do with what you feel is best for you
and your children. I would strongly advise that if you choose
to allow him to see the children, that you mandate he cannot
be high when he does, and then trust your instincts even if
he says he isn't high. Addiction may be a disease, but as a
fellow sufferer, I can tell you that addicts also behave in
dreadfully devious ways, and it is very difficult to trust them
as peopl! e using are generally very manipulative. You
mentioned that you are going to family support groups, and
if Al-anon isn't one of them, I'd suggest attending some
meetings to see if it is right for you. A good sponsor or
therapist can probably help you to sort out what you can live
with as far as boundaries. I've seen people who needed to
get out of their relationships for good and cut off all contact
with the addict on one end of the spectrum, and people who
continued to live with using addicts for years on the other
end, so it is clearly an individual process. Good luck!
this page was last updated: Feb 8, 2013
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