Addressing Fiduciary and Beneficiary Mental Health and Addiction Issues in Estate Planning

Introduction

Every attorney understands that when drafting estate planning documents, a conversation should be had with the clients as to who they will name in fiduciary and other important roles. That conversation always includes some discussion of the attributes of a good fiduciary and perhaps the suitability of particular people contemplated for each role. If a named fiduciary dies or becomes incapacitated they can be removed from their role. So then, do these well understood concepts warrant further discussion? Yes. The reality is that:

• How many estate planning questionnaires solicit information as to the mental health status or addictions of family, fiduciaries and others important to a client’s estate plan? While there is no identifiable data, from informal conversations it appears that many, perhaps even most, do not.
• Discussing these issues is still sadly viewed as taboo and the conversations in some cases may not take place. Either the clients or even the attorney, or both, may be uncomfortable broaching the subject, or uncertain as to how to do so. If a client says, “Name my oldest daughter as successor trustee on my revocable trust,” many practitioners may not inquire further. After all, the client would not have named her if she were concerned with the appointment. While understandable, this may suggest why the conversation may not happen.
• Many clients may not be aware of the struggles of the people they wish to name. For example, will a parent be aware of the mental health or addiction challenges of an adult child that may not have manifested until that child was no longer living at home? The child may also, out of a desire to protect themselves or embarrassment, not make their situation known.
• The client may be aware of the situation but be in denial of the gravity of it.
• The client may be aware of the situation but not anticipate the future changes or understand the magnitude of the problem. It is not a simple or obvious call as to what level a problem must attain to suggest that the affected person should not be named.

“The Mental Help Foundation highlights that many people are reluctant to talk about their mental health struggles due to fear of judgment, rejection, or misunderstanding. This stigma can lead to worsening symptoms, increased isolation, and, in some cases, tragic outcomes like suicide.”

Client Discussion Questions for Consideration

When guiding a client on deciding on who to assign fiduciary roles to, the following questions ,may help the client evaluate each situation:

• How does this person handle stress?
• Can they manage family conflicts impartially?
• Do I trust their judgment and decision-making abilities?
• Have they shown integrity, even when it came at a personal cost?
• Can they resist undue influence or manipulation from others?
• Are they organized, deadline-driven, and willing to seek expert advice when needed?
• Would appointing this person as a fiduciary role harm them or their relationships with family members in any way?

For families where these considerations raise concerns, appointing a professional fiduciary, such as a bank, trust company, estate attorney, or individual professional trustee, may be a solution. Professional and fiduciaries remove emotional conflicts from the process, are more apt to make impartial decisions aligned with the estate plan, and alleviate the burden of legal and administrative responsibilities from grieving family members. This approach may minimize resentment and preserve family relationships, allowing loved ones to focus on healing rather than estate management. While hiring a professional may not be feasible or affordable for everyone, answering these key questions may help identify the person best equipped to handle these responsibilities. Thoughtful fiduciary selection may ensures that the client’s trusts and estate is managed effectively, their wishes are honored, and that their family relationships remain intact.

Mental Health or Addiction Issues Exacerbate Interpersonal Relationships

These issues are further complicated by the dynamics in families where one child has a history of mental health concerns. These relationships may already be strained, as siblings sometimes harbor resentment over the time, money, or attention that parents dedicated to helping the struggling child stabilize. Appointing this individual as executor could intensify existing tensions, potentially damaging the executor’s mental health and the last semblance of family relationships. Allowing an adult child with mental health concerns to grieve alongside their siblings, without the added burden of being an executor, might instead offer an opportunity for healing and support within the family.

Action Steps for Practitioners

A simple starting point is for practitioners to be certain that questions about mental health and addiction challenges appear in all estate planning questionnaires or checklists to solicit this information. Also, in light of the widespread prevalence of these issues, and the potential significant impact on a plan, these inquiries should be raised for every plan.

Drafting considerations should also contemplate these issues. If a fiduciary is not performing well, having a trust protector (or estate protector in the case of a will) authorized to remove a fiduciary for any reason could be useful to cost effectively and quickly remove a fiduciary whose mental health or addiction problem becomes apparent. A trust protector may do so without the cost, time delay, and contention of a court proceeding.

Consider the potential impact if not a fiduciary, but a powerholder given a limited or even general power of appointment over a trust, has or develops a mental health or addiction issue. Imprudent, or worse malicious, exercise of a power of appointment, could undermine an entire plan. Should a trust protector be given expanded authority to remove and replace powerholders?

But more is necessary. In many situations the trust protector serves in a passive manner only reacting if requested by someone to do so. Perhaps encouraging annual meetings of those involved with a trust, or some reporting or other involvement by the protector will increase the likelihood of a trust protector becoming aware of a situation sooner. So, there are three distinct phases at which practitioners can help protect a plan from these issues:

1. At the interview/intake phase.
2. At the drafting phase.
3. At the administration phase.

A More Detailed Look at Mental Health Challenges

Addiction and mental health challenges may affect fiduciaries or other persons involved in a client’s estate planning. When people think of mental health challenges, the typical stereotype is someone who is severely depressed, highly anxious, manic, psychotic, or addicted and struggling to function in maintaining normalcy in their own lives. The truth of mental illness is that symptoms vary dramatically from person to person, symptom severity is a spectrum, and some people go in and out of periods of sustained recovery before hitting a relapse. Most people would not entertain the thought of appointing a child or family member into a fiduciary role who was so symptomatic that their symptoms didn’t allow them to function in their own lives. The uncertainty arises when someone with mental health challenges seems to be functioning well, symptoms are manageable, and they look like they’re doing well. For example, maybe the highly anxious and perfectionistic child looks like the most responsible one. The parent thinks, “this is the child I want making decisions for me if something happens.”

What the client may not be considering is how that child reacts when things feel out of control, critical, and stressful. The very event that might trigger the activation of that child’s appointment, e.g., the disability or death of a parent, may also be so stressful that it triggers a relapse for that child named in a fiduciary capacity. These are the moments when someone in longer-term recovery can revert back to old ways of coping (drugs, alcohol, spending every spare minute in bed, compulsively cleaning, etc.) and be at a greater risk for derailing their own lives, as well as anyone for whom they were given responsibility. If that child were named as a trustee of a sprinkle trust for an entire family, e.g. a parent’s revocable trust, that could be particularly problematic.

Without careful consideration of the consequences, many well-meaning parents simply request that their estate planner draft a document assigning critical roles, such as naming an agent under a medical power of attorney, executor of the estate, or a financial agent under a durable power of attorney, to their adult children, often in age order. Many clients believe this approach reflects fairness and trust. While this sentiment is admirable, it can lead to significant challenges if one child struggles with severe mental illness, addiction, or another issue which may hinder that child’s ability to manage money or fulfill their fiduciary responsibilities. Without proper planning, these circumstances can strain sibling relationships and create conflict within the family. Thoughtful estate planning is essential to better address these scenarios and ensure the legacy left behind serves each child’s unique needs and abilities and enhances family relationships.

The Outright Bequest Role – Simplicity at its Worst

There is another non-fiduciary “arrangement” that warrants consideration. While it seems to occur infrequently, it does happen. While practitioners understand the importance of gifting or bequeathing inheritances in trust, especially for a beneficiary that faces mental health or addiction challenges, many lay persons either do not understand the need for trusts, are uncomfortable with the costs or complexity trusts bring, or may be stymied by the difficulty identifying a trustee to serve when a child (or other heir) has addiction or mental health issues. For practitioners accustomed to dealing with high-net-worth clients, this is a non-issue as an institutional trustee can be used. But the minimum asset size for many institutions is $1-5 million or higher, while some may accept $500,000 trust assets. For many clients these minimums preclude naming an institutional trustee.

Some laypersons believe that the simple and no cost solution is to bequeath assets to a “well-child” (or other family member) who will then have the responsibility of caring for the child who is struggling to a higher and more noticeable degree. That is often a recipe for disaster as all practitioners might imagine. If the well-child dies, becomes incapacitated, is sued, or divorces, the entire inheritance, and the financial security to pay for the struggling child’s care, may all be jeopardized. It also does not consider the mental toll it takes on the designated “well-child” who may struggle with their own mental health issues, including anxiety and depression, but to a less consequential degree than their sibling. Mental health challenges aren’t always at a level where someone is having to go to treatment. Many people struggle with lower levels of anxiety, depression, substance abuse (not at a level of addiction), and other challenges where they’re able to function and manage those issues through outpatient therapy. For many people in this group, the challenges/symptoms of these disorders magnify during times of increased and/or chronic stress or when a trauma response may be triggered. Increased and/or chronic stress is likely to happen when a parent is incapacitated and now the appointed fiduciary, who is emotionally intertwined with the incapacitated person, is forced to make life and death, and financially life altering decisions during the period of incapacitation.

Equality and Planning for the Struggling Heir

While practitioners are knowledgeable of the following, clients may sometimes struggle to grasp ideas that are obvious to professionals. Practitioners should also understand that the stigma associated with mental health and addiction issues, may make it more difficult than in other circumstances for the client to assimilate and act on these points.

Perhaps the following simple analogy will help clients as laypersons facing these decisions to better understand why appointing trustee or a third-party fiduciary and creating a trust with explicit directions (when possible) may be preferable. To help clients understand why providing all children with an outright inheritance or an equal division of fiduciary roles might not always be the best choice, consider this analogy: Imagine you have three children, and one of them has a peanut allergy. Would you give peanuts to all three children as a snack? The clear answer is "no" because it could harm the child with the allergy.

On the other hand, would you decide that none of the children could ever have peanuts simply because one sibling is allergic? Likely not, as that approach would be unnecessarily restrictive and unfair to the others. Instead, you would make a careful, thoughtful decision to provide snacks that meet each child’s individual needs—ensuring that each child is nourished and cared for appropriately.

Similarly, when planning an inheritance and fiduciary roles, it’s important to consider each child’s unique circumstances, as well as the impact of power and responsibility on their own mental health, rather than applying a one-size-fits-all approach. What would it feel like for an older sibling to hold control over the housing and finances of a younger sibling? What would happen if the older sibling was only in charge of the real estate and decided to sell the house the younger sibling was living in and using drugs in when the parent died because the parent let the younger sibling move back in instead of living on the street as a consequence of their addiction? Thoughtful estate planning ensures that the power vested in each fiduciary is manageable and properly wielded and assets left behind truly support and empower beneficiaries in ways which align with their individual needs and situations.

Discretionary Trust for Heir with Mental Health or Addiction Challenges

For someone with a mental health disorder, which may impact their ability to make good decisions or manage money appropriately, a parent may consider creating a discretionary trust or appointing a professional third party to serve in fiduciary roles. A professional third-party fiduciary would be less impacted by the nature of family dynamics, the impact of making life and death decisions in stressful times, and would allow a family to bond in their grief instead of being divided by inserted power dynamics. Further, a discretionary trust could provide the child with the more severe mental health or addiction challenges with access to assets in a way which more flexibly provides for their care (and not subject, for example, to a health, education, maintenance, and support standard if that child were a trustee). This should better protect the child from moments where their judgment lapsed, their impulsiveness took over, or they became active in their addiction and preserve another sibling or relative from the stress of decision making, begging and vitriol from a begrudged child struggling who didn’t get access to money or assets outright, and the ongoing influence of power creating wedges in what might have been either a good or already strained relationship. For individuals who are more stable, they may even be appointed as a co-trustee along with an independent professional trustee in order to provide more autonomy and decision-making power while still providing guardrails and protection.

For individuals who are, or may in the future be, receiving public assistance, a discretionary trust with special needs provisions may still allow them to maintain access to the public benefits which support their daily needs. It is especially important that in such instances outright bequests be avoided as that may undermine the ability to continue receiving governmental benefits. For this type of supplemental or special needs trust (“SNT”) planning, it is imperative that the family consult with an attorney in their state who specializes in Medicaid and special needs planning to assure that the appropriate provisions are included in any trust document, and that they are informed of any other governmental programs, and other steps that they might take. The technical requirements of an SNT are difficult nuances and laws for a family member to understand when acting in a fiduciary capacity and the impact of accidentally miss stepping and causing harm would also increase anxiety and stress in someone who already struggles with these symptoms.

Planning and Drafting Considerations To Address Mental Health and Addiction

Below are a few points to consider when designing and drafting for this purpose:

• Special consideration should be given if appointing people with known mental health or addiction challenges in fiduciary roles. If a person is being considered for a trustee position (or any fiduciary or non-fiduciary role) and it is known that they have an addiction or mental health challenge, careful evaluation should be made as to whether it is even appropriate to name them in such a role. But the unfortunate reality is that in many cases their status may not be knowable until an event occurs. Further, many people would be uncomfortable asking a family member or close friend they are seeking to name as a fiduciary in their estate plan about their past drug, alcohol or mental health history. In choosing these roles, people do not typically assess for historical trauma where their desired fiduciary may have seen another loved one die or lost someone in a traumatic manner or how appointing someone as the trustee of a relative would bring them back to flashbacks of relapses and near-death experiences related to overdosing. Even asking, they might rightfully fear, would be taken as offensive and dissuade their accepting.
• As all practitioners know, selecting the right executor is crucial to ensuring an estate is managed effectively and according to the testator’s wishes. Similarly, the persons appointed in a revocable, or irrevocable, trust to make legal, financial and other decisions will have a crucial role in carrying out the settlor’s wishes. The agent under a durable power of attorney for financial matters, and the agents under health care documents, all have vital roles to serve and naming a person that faces mental health challenges could undermine critically important personal decisions. There may be, at first look, little difference to naming a person serving in one of those roles who later becomes physically disabled, versus naming someone who later develops (or had then merely exhibits) addiction or mental health issues. But there may be practical differences, in part due to the societal taboo on discussing addiction and mental health challenges, or the difficulty of corroborating someone as being incapacitated because of a mental health issue that is not pronounced, but which more subtly affects their conduct. While dealing with a trustee or other person holding powers or a position in an estate planning who becomes physically incapacitated or dies is relatively common, addressing mental health challenges that may impact their performance may be much more difficult. Even professional advisers may have less experience in identifying and understanding these challenges. So it may be, practically speaking, more difficult to know if action is necessary or how to respond. For example, is the mental health challenge one that, even if difficult for that person serving, a material impediment to their serving?
• While individuals with mental health challenges may have the best intentions, they might face unique obstacles which could make it difficult to fulfill the demanding responsibilities of serving as a trustee or in another vital position. Some of these challenges may include, in addition to the challenges that their mental health issues create for them, the stress of administrative and financial duties, increased vulnerability to emotional stress and external pressures, higher levels of impulsivity at times, periods of disturbed cognitive functioning, the potential for manipulation and bias, and fluctuating periods of instability, especially in high stress times. In regard to medical, legal, and financial decisions, the pressure and weight of the resulting consequences of their decisions could be too much for them to bear.
• A trustee is tasked with administrative and financial duties such investing trust assets, filing paperwork such as income tax returns related to the trust, polling beneficiaries for relevant information, making distribution decisions, informing beneficiaries, and so on. They also have to keep accurate and detailed records of all transactions related to the trustee and handle any legal challenges to the trust, or conflicts among beneficiaries. The stress of administrative and financial duties can be overwhelming for anyone, but particularly for individuals managing mental health concerns such as anxiety, depression, or cognitive disruptions (these may include executive functioning challenges related to things like Attention Deficit/ Hyperactivity Disorder or learning disabilities). Fiduciaries must navigate deadlines, handle legal and financial tasks, and make decisions under high-pressure conditions, which can exacerbate mental health symptoms and increase the risk of mistakes. Additionally, people with mental health challenges may be more affected by family conflict or external pressures, making it difficult to remain impartial. They might struggle to set boundaries or to make decisions aligned with the estate plan’s intentions when faced with relational consequences, such as the threat of abandonment or tension with other family members. Similar issues can arise with the personal representative appointed to manage an estate under a will (or as a successor trustee who may do so under a revocable trust).
• For a person appointed to the medical positions under health care documents such as a health care proxy (medical power of attorney) or HIPAA release (that authorizes communications with medical providers and access to medical records), many of the decisions could have dire consequences that are profound, and which the person serving as agent might have to live with for the rest of their lives. Medical power of attorney grants an individual the authority to make healthcare decisions on behalf of someone who is unable to do so, ensuring their wishes are honored and their medical needs are met. This can include decisions about treatments, surgeries, or end-of-life care. Imagine the impact of making a decision that could leave a parent in a coma for years or a decision that could end their life?
• A financial power of attorney permits the named agent to act on behalf of another in legal matters, such as signing documents, paying bills, filing income tax returns (although the IRS power of attorney form may have to be addressed), managing contracts, or handling legal disputes, to ensure the individual’s financial and legal affairs are addressed.
• Many people also use revocable trusts to address these issues of disability or illness. In both cases, if the fiduciary involved has or develops addiction or mental health issues, they could neglect their duties or worse siphon funds of the person who appointed them to support a drug, shopping or gambling habit, or merely to be dissipated during a manic episode, etc. This is why is so important to build checks and balances into these common and ubiquitous estate planning documents. Too often that is not done and unless the appointed agent or successor trustee’s misdeeds become sufficiently extreme to be noticeable, they may not be discovered, or even if discovered significant financial damage may have been done. One possible means to address this could be to use an institutional trustee. While many people are loath to use institutional trustees, and some are precluded because of minimum asset size requirements, some recount horror stories of institutional trustee lack of care or attention, or worse, the reality is that institutional trustees have policies and procedures, and internal checks and balances, to minimize the risk of trustee misconduct. Individual trustees, who often have little training, no formalized policies, typically have few if any checks and balances. The issues may, as explained above, be mitigated by having the legal document appoint a trust protector who can monitor the trustee and remove and replace them if their conduct is sub-par. If a trust officer working for an institutional trustee has addiction or mental health challenges that affect their performance, someone else on the trust company or bank team would hopefully notice that and act to remove that person. An obvious issue with using an institutional trustee is access. Unless the value of the assets in the trust, or the overall family relationship, exceed the threshold required by that institution, they will not be willing to serve. So, using an institutional trustee, while perhaps a good option for wealthier families, is likely inaccessible for the significant majority of Americans. So, what can be done? There are other means of incorporating checks and balances on trustees (and others serving). Consider the following:
• Appoint co-trustees who must act unanimously. In this way, if one co-trustee has or develops issues that affect their performance, the opportunity for them to neglect their duties or dissipate assets may be limited by the involvement of a second co-fiduciary.
• Appoint a person in a position to monitor the trustee. That could be a monitor under a durable power of attorney, an estate protector under a will and a trust protector under a trust.
• When an individual financial fiduciary is serving consider mandating in the governing instrument that duplicate copies of all trust financial records (e.g., bank and brokerage accounts, records of disbursements, etc.) automatically sent to a designated third party, e.g., the family attorney or CPA. That person could serve as a monitor of trust activities. This could be formalized with the trust protector receiving such reports. Require that annual (or more frequent) financial reports be issued to specified people so that others can observe what is happening so that if there is an issue it may be identified more quickly.

A problem with each of the above approaches is that it adds cost and complexity to the plan, but the most difficult problem may be identifying additional people to serve in these capacities.

There is another twist on these concepts, any fiduciary could be subjected to pressure, even abuse, by a beneficiary with an addiction or mental health disorder, and may have difficulty with the frequency and escalation of the beneficiary’s behaviors. Many individual trustees could at some point out of frustration with the abuse, resign or cave in to the pressure and give that beneficiary the funds they are demanding. Even institutional trustees may not be immune to these issues as the behaviors create liability concerns, and drain administrative resources and time. Especially if something bad happens as a result of caving to the pressure, the fiduciary who is closer in relationship to the beneficiary may experience trauma, self-blame, and a variety of other negative impacts to their own mental health.

Additional Questions to Suggest Clients Consider in Evaluating Fiduciaries

Most people who make create an estate plan think through who would be appointed as their fiduciaries. Although there’s not a standard of how these decisions are made universally, most people reflect on people they know within a certain proximity, the people who they trust to make decisions in alignment with their values, and the anticipation that the people appointed would make decisions in line with the wishes they have for themself. Within this conversation, additional questions arise, such as:

• How often are the people chosen in these roles informed prior to a need to make decisions?
• How often are these decisions updated based on evolved circumstances?
• How frequently is someone able to say “no” when they don’t feel they are the right person but don’t want to let down a family member who chose them?
• For people who have the financial resources to hire a third party like a trustee, is that option discussed?
• What if financial resources aren’t available and they must pick a family member who has a history of mental instability and/or addiction?

Estate planners have an ability to help people analyze the different ways to make these decisions, including encouraging the client to ask the potential fiduciaries directly, playing out theoretical scenarios with them, and giving the potential fiduciaries an opportunity to decline and not accept the responsibility because of a feeling of perceived guilt or pressure.

Can and Should Fiduciaries Be Required to Submit to Testing

Requiring that individual fiduciaries submit to testing as a condition of serving is unusual, may dissuade anyone from serving, and may raise a host of difficulties. Should this even be considered?

The advance discussions clients should have with potential fiduciaries, as discussed in the preceding section, might also allow estate planners to create creative solutions like drug testing and psychological testing for appointed fiduciaries that have a history of addiction and mental illness so there are safeguards in place for people who have a higher likelihood of mental instability in certain stressful periods of their life.

The possible benefits of including additional measures such as drug testing and psychological testing prior to a fiduciary stepping into their assigned role and making decisions is clear. A psychological evaluation may ensure mental and emotional stability of the individual making the decisions at the time. It allows the psychological evaluator to anticipate whether any prior mental health conditions or current mental health symptoms may negatively influence a person’s decision making and have a negative influence on both them and the incapacitated person. These measures also protect the incapacitated individual, can establish concrete evidence and a process for mental fitness which could reduce family conflict and legal disputes down the road, increases accountability and trust, and prevents financial exploitation due to impaired decision-making. Drug testing an individual prior to their assuming a fiduciary role, and/or prior to making certain designated material decisions, may prevent potentially reckless and impulsive decision making due to intoxication which may create irreversible consequences, it could also save the person who is impaired from living with the guilt of making reckless choices with lifelong ramifications.

As is obvious, there are numerous possible negative implications of psychological evaluations and drug testing prior to a fiduciary beginning to serge, or prior to making specified critical decisions. In instances where immediate decisions need to be made, the testing creates delays in decision-making and just as a drug test is subject to false positives, a psychological evaluation is subject to clinical bias as well as temporary and immediate stress factors. Psychological testing is subject to the condition or state that fiduciary is in at that time and most people in that position are grieving, scared, and in a place of uncertainty. Finally, additional costs and administrative burden may make it difficult to execute both psychological evaluations and drug tests on a regular basis.

Having these measures in place may not be necessary for people who have a longstanding history of sound judgment and decision-making. For individuals in recovery from an addiction or mental health disorder, where relapse, especially in times of heightened stress, is more common, additional safeguards should be put in place when a family member feels they have no other option for naming a fiduciary. Adding these directives to the estate plan could limit the long-term negative consequences for both the person writing their estate plan and the person appointed in a fiduciary role. Prior to appointing the person, discussions could be had about their comfort level in making these decisions, playing out scenarios to see how they might anticipate feeling making life or death decisions, even knowing your client’s wishes, and what long-term effect they might anticipate if a decision they made ultimately resulted in a costly financial result, or in the case of health care decisions, a death. The estate planner could have a list of proposed questions for their client to take home and ask everyone they’re considering naming as a fiduciary, write down their answers, and reflect more intentionally on the ramifications of each fiduciary appointment.

Case study of a Fiduciary with Addiction Issues

Mark, a 67-year-old man, suffered a severe stroke and is now incapacitated, unable to communicate or make medical decisions for himself. Three years ago, while in good health, he appointed his niece, Sarah, as his medical power of attorney (HCPA) because he trusted her judgment and felt she understood his values and wishes. At the time, Sarah had been in recovery from opioid addiction for five years, and Mark saw her as a responsible and capable decision-maker. However, as Mark's condition worsens, his doctors are now seeking guidance on potentially life-altering medical interventions, including the possibility of placing him on a long-term ventilator or pursuing high-risk surgery with uncertain outcomes.

When Mark made his initial decision, he believed Sarah was in a good place in her recovery. She seemed to move forward successfully in her ability to cope, manage family relationships, and stay employed. Mark believed this time in her recovery was different. In fact, he even allowed her to stay with him after her last rehab stay because she had burned so many bridges with her parents. This is the time they became closer, and without kids of his own, he believed she could be the right person to make these medical decisions for him if something were to happen in his future.

Unbeknownst to Mark, Sarah relapsed several months prior to his stroke and she is struggling to maintain stability in her recovery. Because Mark was so proud of her and so supportive in her last round of getting sober, she did not tell him about the relapse because she didn’t want to let him down. Right now, she is experiencing increased emotional distress, compounded by the pressure of making critical medical choices for her uncle. Family members are noticing that she appears overwhelmed, avoids detailed medical discussions, and has had difficulty attending meetings with doctors consistently. Her mother, Mark’s sister, is particularly concerned that Sarah may not be in the best position to make rational, well-informed decisions, fearing that her judgment may be clouded by her current struggles with addiction. That being said, she has no concrete evidence to confront Sarah. Other relatives are divided—some believe Sarah should still be allowed to fulfill the role Mark entrusted to her, while others worry that she may unintentionally make decisions based on emotional distress rather than medical reasoning and Mark’s wishes.

As Sarah grapples with this enormous responsibility, medical professionals are urging the family to provide clear direction. While Mark’s advance directive offers some guidance, there are several decisions that require nuanced judgment, including whether to pursue aggressive treatment or prioritize comfort care. The family must now consider whether Sarah, given her current struggles, is still the best person to act as Mark’s medical proxy. If she is unable to fulfill the role effectively, the family may need to seek legal intervention to reassign decision-making authority to another trusted relative or petition the court for guardianship.

This difficult situation highlights both the emotional ways which drive people to appoint medical power of attorney and other fiduciary roles and a need for safeguards to verify someone’s competency to fulfill the role in the moment a crisis emerges, forcing them to step up and make critical decisions.

Conclusion

Mental health and addiction issues are common. Far more common than most people would anticipate. While there are no failproof steps to take to address these in planning, this article has suggested that being more deliberate in guiding clients on these considerations, and perhaps modifying a few common planning and drafting approaches, may provide some additional protection for the client, the fiduciary or beneficiary affected by mental health or addiction problems, and the family as a whole.