"Don't confront me with my failures; I had not forgotten them."
That's a line from "These Days," one of my favorite Jackson Browne songs. Although the song makes it sound very personal to Jackson, I thought about that line a lot over the years. Mostly when I've screwed up something.
The truth is none of us are perfect. We all have faults and have disappointed the ones we love. Fortunately, the ones we love usually find away to forgive us.
But what happens if you simply can't find it in your heart to forgive? Or what happens if the people who we love's failures are more like demons? Maybe your loved one has a drinking or drug issue that has driven them down the wrong path. Maybe they have found themselves on the business side of the police. Maybe they have a gambling issue that has resulted in them making some really bad choices.
Let's face it, every family has one. The question is how do you deal with it? Is the issue extreme enough that you need to address it in your estate plan? Perhaps for your own peace of mind or for the safety and well being of your loved one. Enabling can have serious consequences.
One obvious choice that you have is to disinherit the problem child. Completely exclude the loved one from your estate plan.
You have the right to exclude anyone from your estate plan. Except for a spouse, none of us have a legal or moral right to someone else's estate. If the issue is to the point that you need to completely exclude someone, do it. I'm sure it won't be easy but if that's what needs to be done, you should do what is right. I also be it won't come as a surprise to the one being excluded.
On the other hand, if you can find a way to forgive but don't want to provide them with the means for their own destruction, you can establish a trust for their benefit and put someone else in charge of the money. Let's face it, it doesn't make a lot of sense to leave someone with a drug addiction a pile of money. That's a recipe for disaster.
Instead, leave their share of your estate in a trust that gives the trustee discretion over what is distributed. That way the trustee can assist your troubled loved one and hopefully help them get well. The trustee can pay their rent or provide them with groceries but not provide them with the means to gamble or buy drugs or alcohol.
You can even use incentives to encourage the troubled soul to get help. Provide for distributions as long as he stays sober or gets help with his gambling issue. Never underestimate the motivating power of money.
We all have demons, even our loved ones. If your faced with a family member whose problems require addressing, call your attorney and discuss your options.