By Linda T. Cammuso

Legally obtained opioids contributed to a health epidemic that has killed 2,000 people in Massachusetts each of the last three years. Numbers peaked with 2,100 confirmed opioid-related overdose deaths in 2016, with a 3% drop over the two years since. In 2018, there were an estimated 2,033 opioid-related deaths. In Worcester, fatalities hit 97 in 2018, up from 80 the prior year and 24 in 2012.

Excerpted from Worcester Business Journal, 7/24/19

It is devastating to see your child or grandchild succumb to addiction. You want to help them now, but you should also consider how to help them later through your estate plan.

If your Will provides a lump sum distribution or cash bequest, that can be fatal for an addicted adult if the funds are used to purchase harmful substances. However, writing that loved one out of your estate plan and not providing the support they need could also be disastrous. Fortunately, by establishing a trust, options are available for you to leave assets to your at-risk loved ones in a protective and controlled manner.

Create a Discretionary Trust

Setting up a trust for a beneficiary struggling with addiction ensures oversight and accountability in how, when and whether that person’s inheritance is spent. A discretionary trust arrangement will allow the trustee (the person charged with oversight and discretion over the trust assets) the ability to exercise distribution discretion based on both positive and negative behaviors. The beneficiary could receive distributions in the event he/she sustains positive lifestyle changes and benchmarks. Conversely, if the beneficiary is struggling, his/her bills can be paid directly by the trust so that cash funds never reach the beneficiary’s hands.

Selecting the right Trustee

Deciding who can serve as a trustee in a substance abuse situation is not easy – just as accepting that role requires a great deal of careful consideration. The trustee is challenged with ascertaining the beneficiary’s fitness to receive funds, and making – or withholding – distributions accordingly.  In some cases, it is too difficult for a single individual so a co-trustee arrangement may work better. Professional trustees such as attorneys, banks or trust companies are also an option.

Examples of conditions a Trustee may impose

Here are a few benchmarks that a trustee may consider in deciding whether to delay or withhold direct distributions:

  • Drug Testing: The trustee can ask the beneficiary to undergo regular, random drug testing in order to maintain distributions.
  • Treatment: The beneficiary may be asked to show proof of participating in a treatment program.
  • Employment: A beneficiary’s ability to acquire and maintain employment is another way to establish fitness for distributions.

If opioid or other addictions have impacted your family and you want to address these challenges in your estate plan, contact us at EPLO. We can help you draft a trust document that can address both recovery and possible relapses.

Share This