Loud and Clear: A Special Needs Conversation

A Few Thoughts about Special Needs Planning for Mental Illness

By R. Shawn Majette, Esq.

Advance planning is essential in providing for the well-being of an individual with severe mental illness. The shifting presentation of its symptoms, however, demands an adjustable approach.

While even a person with severe mental illness may usually be perfectly competent, modest changes in circumstances can rapidly cause a sharp and devastating deterioration. The wrong salad dressing in a restaurant is a minor annoyance to most; to a person with an affective or paranoid disorder, it can be proof of a conspiracy, or worse. A missed dose of Lipitor to a heart patient may be of passing concern; a missed Prolixin injection in a person with schizophrenia may light a fuse. Without medicine – and sometimes, even with and because of the medicine – a perfectly ordinary person can quickly become dangerous to himself or others, and easy prey to financial predators.

The objective in these cases is to craft legal instruments with sufficient flexibility to promote independence when possible, and protection when needed.

Many family members are aware that they may choose between a number of trust instruments to provide for the financial well-being of their loved ones.

Special needs trusts can prevent assets from being wasted by a beneficiary with mental illness. They can also be helpful in protecting a beneficiary’s eligibility for government benefits such as SSI (Supplemental Security Income) and Medicaid, which depend upon the beneficiary’s income and assets. These trusts permit the trustee (often a parent) to title assets in the name of the beneficiary or the trust, giving flexibility in protecting the asset from a beneficiary’s unwise use of credit. A trustee might allow the beneficiary to have some assets (a modest bank account) while holding other assets (such as the home) in the trust.

Revocable living trusts have their place, but not when the person with mental illness can revoke the trust. Anything such an individual can do, his creditors and the government can do, which includes attaching the trust assets in a lawsuit or “imputing” the assets in applications for SSI or Medicaid.

It’s possible to strike a nice balance. One way of riding out predictable periods of mental incapacity is the “in-out trust.” The revocable living trust specifies a period of time—perhaps 30 to 90 days—during which a trustee can himself decide whether the beneficiary is having a spell. If the trustee decides that the beneficiary is temporarily incapacitated, he can delay acting upon – or ignore – requests which are not in the beneficiary’s interest. In most cases, an acute psychiatric crisis will have passed during the cooling off period. Assets which would otherwise be at risk will have been protected for him to enjoy.

There are times when an individual with mental illness requires, but rejects, hospitalization. The illness itself prevents insight, and over time, takes over. Standard health care proxies do no good in these cases, since the agent’s authority vanishes when the proxy giver refuses care or revokes the agent’s authority. In extreme cases, when health and public safety are involved, families and public entities must resort to the courts for civil commitment. This is trauma writ large: think of police, handcuffs, judges, lawyers, locked cells.

In response, a growing number of states have established the psychiatric advance directive (PAD). A PAD states that if the agent and doctor agree that hospitalization is in the patient’s best interest and that the patient is incapable of consent, the doctor and hospital may treat the patient, even against his stated wishes, while incapacitated. Provisions can (and should) be made for administration of psychiatric medications; consideration should be given to electroconvulsive therapy , especially when there is a history of depression.

A PAD confers great authority and should not be lightly granted. Peer counseling, by individuals who have benefited from this sensitive and discreet course, has been greatly successful in educating families about the advantages of being proactive. A helpful resource for families and civic groups in this area of health care is http://www.advancedirective.org, which provides forms, peer training modules and other materials for these very important documents.

Posted: February 13th, 2012 | No Comments »

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