When To Consult An Estate Planning Attorney After A Mental Health Diagnosis
If you’re recently learned of a loved one’s mental health diagnosis, your mind is likely occupied with a range of worries and uncertainties: how should you support them? How can you help them access treatment? What new challenges will they face in daily life? Among all these concerns, speaking to an estate planning attorney is probably not your top priority. Yet being diagnosed with serious mental illness often has significant estate planning implications, and seeking specialist advice from an estate planning attorney is an important part of ensuring your loved one’s best interests are always protected.
How Does A Mental Health Diagnosis Change Estate Planning Priorities?
Typically, estate planning involves giving careful consideration to how you want your assets to be distributed after your death, and preparing the necessary legal documents – such as a will or trust deed – to give effect to your wishes. Although estate planning is rarely straightforward, a mental health diagnosis adds a further layer of considerations to the process. If your loved one has just been diagnosed with a mental illness, it is crucial that you help them to revisit their estate plan if they already have one, or begin planning if they don’t.
Your loved one’s estate plan will need to cater not just for the distribution of their assets upon their passing, but also for the possibility of their incapacity due to a mental health crisis. If your loved one is already incapacitated, they will not be legally competent to execute a will, and in this scenario you will need to speak to an experienced estate planning attorney to explore other possibilities such as guardianship. Ultimately, your key priority should be to ensure that your loved one’s assets are protected from financial mismanagement, and that a trusted individual is able to make important decisions on your loved one’s behalf during periods of incapacity.
Key Moments When The Advice Of An Estate Planning Attorney Is Indispensable
In the context of fluctuating mental health, there are several key points at which it is essential that you consult with an estate planning attorney to determine next steps for your loved one.
After diagnosis or a mental health emergency
If your loved one has just been diagnosed with a mental illness, or has recently been subject to an involuntary Baker Act hold after experiencing a mental health crisis, an estate planning attorney can help you to assess whether your loved one’s estate plan will need to make provision for their future incapacity. Even if your loved one’s mental illness is unlikely to impact their capacity, it is still a good idea for them to consult with an estate planning attorney before making any large financial decisions or drafting a will.
When there are signs of cognitive decline
You should also consult with an attorney when your loved one is beginning to show signs of cognitive decline due to a degenerative neurological condition such as Alzheimer’s. In this circumstance, it is also important that your loved one plans for their future incapacity, and elects someone to make health care decisions on their behalf if they are no longer able to make these decisions for themselves.
When your own estate plan needs adjusting
It is also essential that you review your own estate plans after learning of a loved one’s mental health diagnosis. You may wish to make special provision for their future care in your will through the creation of a testamentary trust, or may want to put measures in place to ensure that their inheritance is managed on their behalf. If your loved one’s mental illness takes the form of addiction, you will want to ensure that any money you leave to them does not jeopardize their sobriety, and may want their inheritance to be paid to them in instalments rather than as a lump sum, or managed by a trustee.
How Does Mental Health Incapacity Impact The Estate Planning Process?
Under Florida law, a person must be of ‘sound mind’ in order to execute a valid will. This means that they must be able to understand the nature and consequences of the decisions they are making regarding the distribution of their assets, and must clearly understand the contents of the legal documents they are signing. If a person is not of sound mind when executing their will, the will’s validity can be challenged in court.
If your loved one’s mental illness has progressed to such an extent that they lack the capacity to execute a will, then it’s also likely that they lack the capacity to manage their affairs in general. If this is the case, it is important you put measures in place to ensure that their assets are taken care of while they are mentally incapacitated. In most circumstances, this will mean seeking appointment as your loved one’s guardian, so that you can take decisions relating to property, finances, and medical care on their behalf. Your estate planning attorney will be able to help you seek an emergency temporary guardianship appointment if you are concerned that your loved one is mismanaging their assets or is at imminent risk of financial exploitation.
Estate Planning Priorities For Those Living With Mental Health Issues
Mental illness presents unique estate planning concerns. If your loved one has recently received a mental health diagnosis, their estate planning priorities should include, but not be limited to:
- Catering for fluctuating capacity: this may include using a combination of legal instruments such as a power of attorney (POA), healthcare surrogacy and trust deed, to ensure that future changes in capacity – whether temporary or permanent – are catered for
- Planning for crisis situations or relapse: POAs and healthcare surrogacies can include conditional clauses so that they only come into effect during a mental health crisis or addiction relapse, ensuring that a trusted family member or friend can immediately start making decisions regarding treatment or assets when necessary
- Protecting assets from financial exploitation: POAs and trust deeds can also be used to ensure that assets are properly managed and protected during periods of incapacity
An estate planning attorney will be able to advise your loved one on the various legal tools available to them and will tailor their estate plan to their precise needs. They will also help your loved one to choose an appropriate trustee or healthcare surrogate, so that your loved one has total peace of mind that their interests will be taken care of by a trusted individual if this becomes necessary.
How an Estate Planning Attorney Works With Mental Health And Addiction Law
If your loved one is in crisis and you’re not sure where to turn to help them, an estate planning attorney with mental health law expertise is an excellent first port of call. They will have experience facilitating emergency mental health interventions (Baker Act holds in the event of a mental health emergency, and Marchman Act proceedings in the event of spiraling addiction), and can coordinate these interventions with any estate planning measures that need to be put in place. They can also facilitate emergency guardianship petitions, and ensure that any legal interventions are aligned with treatment plans so that your loved one’s treatment proceeds smoothly and any incapacity concerns are addressed at the appropriate point.
Ultimately, an estate planning attorney will be best placed to help you navigate both the short-term and long-term challenges that a loved one’s mental health crisis presents. They will be invaluable source of support, and will take care of all the administrative and legal aspects of your loved one’s care so that you can focus on being there for them during this difficult time.
Seek Specialist Estate Planning Advice From Florida’s Leading Mental Health Law Firm
During the upheaval of a loved one’s mental health diagnosis, it is all too easy to neglect estate planning. However, estate planning is an essential part of planning for your loved one’s future and ensuring that their best interests will always be protected.
The experienced estate planning attorneys at Astor Simovitch Law have a wealth of expertise in Florida mental health and addiction law, and will be able to provide your family with specialist advice tailored to your loved one’s circumstances. Our compassionate team is on standby to help you navigate the legal and practical complexities that a loved one’s mental illness presents, and will approach your loved one’s estate planning needs with sensitivity and care.
For exceptional legal support during this challenging period, contact us today at 561-419-6095 and we’ll take care of the rest.