Mental Illness and Criminal History…

First, this office’s hearts and (thoughts/prayers) go out to the City of Boston, the victims of the horrific marathon bombings, and to runners everywhere who have seen their sport forever changed.  As more information is revealed about the suspects implicated in this horrible tragedy, we have learned that the suspects are young: 19 and 26 years old.  While the 26 year old brother has been killed in a police firefight, the 19 year old has been arrested and, if convicted, will likely be jailed for a long time.  Unfortunately, although this is an extreme case, many individuals deal with troubled children and the extent to which those children should inherit a portion of the estate  is fraught with emotional anxiety.

Most often, adult children who have mental illness or criminal history become wards of the state.  When mental illness prevents someone from obtaining work, Medi-Cal and other government aid programs step in to subsidize their well-being.  Adult children who commit crimes, obviously, go to jail or prison, where the state allocates a large amount of its resources.  Such expenditures by the state are, to the maximum extent possible, loans.  Upon the death of the person using the resources, the Director of Health Care Services must be notified if the decedent received Medi-Cal so that Medi-Cal can pursue reimbursement.  If a Medi-Cal beneficiary receives an inheritance, it could disqualify the beneficiary from benefits until the majority of his inheritance is gone.  The Director of California Victim Compensation and Government Claims Board must be notified if a beneficiary of the decedent is jailed so that outstanding restitution fines may be intercepted from the inheritance.

Depending on your circumstances, and those of your children, you may want to consider your options for avoiding offering up your entire estate to the state of California.  In the first instance, you may plan for your future Medi-Cal needs through the use of a QMap trust.  By properly planning in advance, it may be possible for you to preserve a substantial amount of your estate for your heirs.  Through the use of an irrevocable trust, you may be able to insulate all or a portion of your estate from reimbursement claims.  
Similarly, if a beneficiary is receiving government benefits, a special needs trust may be useful.  In a Special Needs Trust, a third party trustee controls and manages the disabled beneficiary’s inherited assets, which, among other benefits, preserves the beneficiary’s eligibility for Medi-Cal.  However, there are many drawbacks to Special Needs Trusts as well: if the beneficiary is cured of his disability, for example, the trust still may not distribute the assets.  During administration, the assets must be used for “special” needs, which are generally outside the realm of ordinary needs such as food and shelter.

Finally, if the beneficiary has been imprisoned or jailed, his inheritance may be intercepted in order to pay restitution fines.  If any inheritance is left, it will be placed in a trust fund with limited access.  The funds the inmate receives in his trust account may be used for limited purposes, such as purchasing commissary items.

In such difficult circumstances, it is important to consider all of your specific circumstances in order to determine the best course of action.  Depending on the mentally disabled individual’s chances of recovery, or the inmate’s chances of release, your estate plan can reflect this situation and preserve your assets for the benefit of your heirs.

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