Estate-planning professionals are often considered “inner circle” among the families they serve. Their role necessitates a certain amount of trust among clients, who must be upfront about unfortunate realities to best prepare for their potential financial impact. The most successful attorneys, advisors and planners in this space work closely with the same families over many years, even decades, becoming confidants and go-to resources when serious challenges arise.
Hence, I often hear from estate planners when families they counsel realize a loved one needs a level of mental health care or related services not currently being provided. These families are often distraught, having witnessed years of failed clinical treatment plans. They’ve watched their loved ones abuse alcohol, prescription medications and/or illegal drugs; sleep on the streets; cycle in and out of psychiatric hospitals and/or jail; and finally return home, only to again exhibit lack of insight and non-compliance with treatment. They’re trapped in a toxic cycle and don’t know where to turn or how to fix it.
Because May is Mental Health Awareness Month, there’s no better time for estate-planning professionals to consider the counsel these families need—immediately and over the long term—in the event they’re faced with such dire circumstances.
First let’s look at the statistics:
While much attention is paid to the one in five adults or 46.6 million individuals in the United States who experience some form of mental illness in a given year, a key but often forgotten subset of this figure is the one in 25 adults or 11.2 million individuals who experience a serious mental illness that substantially interferes or limits one or more major life activities. These include the 1.1% of adults in the United States who live with schizophrenia; the 2.6% who live with bipolar disorder; the 6.9% who had at least one major depressive episode in the past year; and the 18.1% who experienced an anxiety disorder, such as post-traumatic stress disorder and obsessive-compulsive disorder.
These are the kinds of diagnoses that often drive families to desperation. They represent a grave departure from today’s increasingly ubiquitous mental health challenges, like job-related stress, insomnia and mild depression – conditions that can often be treated by a mix of therapy, prescription medication and self care. Severe mental illness is a different ballgame. Those who suffer from it require comprehensive, ongoing treatment, but face tremendous barriers to care, including dire shortages of outpatient programs and supportive housing. Hence, their families take them in time and time again. There’s no where else for them to go.
But there’s still a way to help.
As a starting point, estate-planning professionals can provide clear, basic information on the legal rights afforded to family members of loved ones with mental illness. Because misinformation and knowledge gaps about these rights persist, even among veteran mental health professionals, families might know little about the protections they have and potential legal avenues for making significant changes. For example, they have a right to:
- bring forward a legal proceeding to have someone appointed to manage the individual’s health care and/or financial affairs.
- request that a court direct their loved one to be committed to a hospital for evaluation and/or treatment (depending on state law).
- obtain an Order of Protection if their loved one is threatening or violent toward others in a family or living situation.
- reach out to a hospital and treatment provider and give information, understanding that without the patient’s consent, the provider can’t confirm or deny their loved one is a patient or in treatment and that no information can be forthcoming. A treatment provider or hospital can listen even if not respond.
- deny their loved one support, a place to live, food and other necessities.
- request an out-patient commitment court order if state law provides for this.
Estate-planning professionals can also make referrals to other specialized professionals, like mental health attorneys, who can create personalized action plans to meet short and long-term goals that benefit both families and loved ones. For example, a specialized lawyer can recommend such tools as mental health warrants, guardianship proceedings, health care proxies, living wills and powers of attorney. Further, they can assist with finding additional clinical resources like assisted outpatient treatment and case management and help families access alternative, confidential, private-pay services, like professionally choreographed psychiatric interventions
While our current mental health system is largely, tragically broken, there are means available to families with loved ones suffering from serious mental illness, specifically those who haven’t found solutions in clinical help alone. But to unlock these services, individuals must overcome the stigma long associated with serious mental health conditions that once kept such discussions to near whispers and too often prevented individuals, families, communities and professionals from engaging in the kinds of conversations that could yield real assistance.
Carolyn Reinach Wolf, Executive Partner at the law firm of Abrams Fensterman and Director of its Mental Health Law Practice, is one of the few family-focused mental healthcare attorneys in the country.