Worries re inheritance going to drug addict

JakiT

Sorry, I posted this is the wrong place so am reposting here.

A friend of mine is worried about her drug using grown-up child who will be owed some from the sale of the house from my friend's deceased ex at probate (ie the father of my friend's daughter). The daughter is one of the beneficiaries and I think was persuaded to renounce executor duties by another sibling who is also an executor along with their mother (my friend). My friend doesn’t want her daughter to squander her inheritance on drugs. I can see her side but she can also quite a controlling and manipulative person and clashes with her daughter (who can also be manipulative). Can my friend control her daughter finances like this if the daughter is a beneficiary? I can see my friend’s problem too because her daughter has stolen money before to fund her habit and stolen from my friend too. I am wondering if my friend can put the proceeds from sale of the property left by her ex into a trust for her daughter or does that have to have been specified in the deceased’s will? My friend says there are rules on mental incapacity for people who are incapacitated by drug addiction or substance misuse.

Thanks

g6jns_2

JakiT wrote: »

Sorry, I posted this is the wrong place so am reposting here.

A friend of mine is worried about her drug using grown-up child who will be owed some from the sale of the house from my friend's deceased ex at probate (ie the father of my friend's daughter). The daughter is one of the beneficiaries and I think was persuaded to renounce executor duties by another sibling who is also an executor along with their mother (my friend). My friend doesn’t want her daughter to squander her inheritance on drugs. I can see her side but she can also quite a controlling and manipulative person and clashes with her daughter (who can also be manipulative). Can my friend control her daughter finances like this if the daughter is a beneficiary? I can see my friend’s problem too because her daughter has stolen money before to fund her habit and stolen from my friend too. I am wondering if my friend can put the proceeds from sale of the property left by her ex into a trust for her daughter or does that have to have been specified in the deceased’s will? My friend says there are rules on mental incapacity for people who are incapacitated by drug addiction or substance misuse.

Thanks

The short answer is no. The long answer is that there is no power to put the inheritance in trust without the beneficiay's agreement. Drug addictio does not count as mental incapacity. Sadly there is noting that can be done.

BobQ

Your friend is an executor of an estate and legally obliged to follow the deceased Will and the directions it contains. Failing to do makes her liable to legal challenge since she has sworn an oath to execute the will. If the will leaves money absolutely to a beneficiary she is legally obliged to pay it to them if they are no longer a minor. She has no power to create a trust as it is not her money unless the child is a minor..

As an executor she can do nothing more, but as the mother she could apply to the Court of Protection to be a deputy and argue that the person lacks mental capacity as you suggest. That said she would have to show they were incapable of making decisions, not that she might make decisions the mother disagreed with. As stated above having an addition is not necessarily mental incapacity.

It might be better to try and persuade the beneficiary that their addition means they are likely to waste the money and persuade her to voluntarily put the inheritance into a trust that could be dissolved when the trustee (not necessarily the mother) thinks they are over the addition.

JakiT

Thanks for your replies g6 and BobQ.

Bob, so how does the Court Of Protection work in such cases? If my friend applies to become a Deputy, what sort of proof would she need re her daughter's drug addiction and her incapacity? Do they have to see and assess her daughter or do they do via reports by other professionals? Would the CoP take into account previous theft of the mother by the daughter? I'm sure her daughter would contest it and then I suppose it would be up to the court to decide if an application has been made to be deputy.

I think the idea of a trust is a good one, though I see that this would have to be agreed by her daughter.

Savvy_Sue

Court of Protection

making decisions other people think unwise doesn't indicate a lack of mental capacity.

G6JNS

JakiT wrote: »

Thanks for your replies g6 and BobQ.

Bob, so how does the Court Of Protection work in such cases? If my friend applies to become a Deputy, what sort of proof would she need re her daughter's drug addiction and her incapacity? Do they have to see and assess her daughter or do they do via reports by other professionals? Would the CoP take into account previous theft of the mother by the daughter? I'm sure her daughter would contest it and then I suppose it would be up to the court to decide if an application has been made to be deputy.

I think the idea of a trust is a good one, though I see that this would have to be agreed by her daughter.

Drug addiction does not amount to legal incapacity. So there is no role for involving the COP.

TBagpuss

Drug addiction is not in itself a lack of capacity so the Court would only become involved if they were satisfied, based on independent medical evidence, that the beneficiary lacked the necessary mental capacity to make her own choices.

Someone will only lack capacity if they are unable to do one or more of the following:
* Understand information given to them
* Retain that information long enough to be able to make a decision
* Weigh up the information available to make a decision
* Communicate their decision.
It is also possible for someone to have capacity some of the time, but not all of the time - in which case, they can make choices for themselves when they do have capacity.

Your friend's daughter stealing from her family is not evidence of lack of capacity.

Unless your firned's daughter suffers from serious mental illness as well as being addicted, then you friend will not be able to avoid passing on her inheritance or controlling how she uses it.

If she is able to pick a good time to talk to her daughter, then her daugther could chose to set up a trust which could help her to manage her inheritance and reduce the risk of her blowing it all, however, she (daughter) would need legal advice on how to do this, and it may be very difficult to set up something which would work effectively, particularly as, if Dau is claiming any benefits, she will need to ensure that she does not do anythign which would be seen as a deliberate deprivation of assets.

Perhaps daughter may be open to spending some of her inheritance on getting private treatment, if she wants to try to overcome her addiction.

and in a worst case scenario, your friend might find some comfort in knowing that if her daughter is able to afford to pay for drugs from her inheritance, she may be safer, as she may be less likely to be involved in things such as theft, prostitution, sharing needles etc.

JakiT

Many thanks TBagpuss - some very good advice and suggestions there. Thanks to all who have responded. I've been tied up with another completely separate problem of my own so haven't had a chance to see where my friend is at with this.

BobQ

JakiT wrote: »

Many thanks TBagpuss - some very good advice and suggestions there. Thanks to all who have responded. I've been tied up with another completely separate problem of my own so haven't had a chance to see where my friend is at with this.

I have nothing to add to the advice above. Without knowing the actual condition of your friend's daughter it is impossible to comment. Drug addition is not of itself justification as has been said. You would have to show that it and other factors lead to serious mental incapacity as TBagpuss explains. If it this bad, you might get information from the MIND website or helpline.

As I suggested, your friend's best option is to persuade her to do something voluntarily for which legal advice would be required. But if she does not agree there is little to be done but watch her blow the money.

JakiT

Thanks BobQ

I think her daughter is in quite a bad way at the moment (although I am only hearing it from my friend's perspective) and as you will appreciate it isn't always easy to ascertain with addiction, as my friend is obviously not objective about it and may be perceiving her daughter's state as worse than it is. On the other hand from my friend's point of view, she would argue her daughter's state is even worse that it appears because she 'lies and manipulates' like all addicts' (my friend's words).

I will speak to her about the voluntary options suggested her and how she might take it forward when I next speak to her, if she's not already considered them.

Thanks again.

Savvy_Sue

Again, lying and being manipulative doesn't mean the daughter lacks capacity.