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Drug addict brother and parents' estate planning

Feb 2006

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. anonymous please!


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. anon
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. M.H.
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 clean again. Jessica


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 the money.

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. Tarri


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 this area. 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 squandering. 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 referrals. anon
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! Lori
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. anonymous
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. anonymous
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. anon


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 on this. anon
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 living trust. anonymous


Drug addicted husband

Feb 2004

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 support meetings. 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. anon


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! not using
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