Estate Planning for Mental Health Reasons

?This morning, I witnessed a distressing sight while driving to work—a naked woman, seemingly well-off and in her thirties, surrounded by tens of boda boda men and onlookers, speaking to herself incoherently. This heart wrenching image took me back to the alarming statistics: over 14 million Ugandans, approximately 30% of the population, suffer from mental illness, including depression and anxiety. With mental health issues on the rise, largely due to social pressures and the high cost of living, the importance of estate planning in such scenarios cannot be overstated. Estate planning is not only a tool for distributing assets but also a safeguard for individuals diagnosed with mental health conditions, ensuring that their financial, medical, and legal affairs are managed effectively when they cannot do so themselves.

?Why Estate Planning for Mental Health Is Crucial

Mental illness can strike suddenly, leaving individuals unable to make rational decisions regarding their finances, healthcare, or family matters. Estate planning, particularly when mental illness is involved, serves as a protective mechanism to ensure that individuals' wishes are respected and that their affairs are handled responsibly. Key tools such as Powers of Attorney, Trusts, and Wills allow families and caregivers to manage an individual’s needs without legal complications.

In Uganda, the importance of estate planning is further highlighted by the Succession Act and the? Succession (Amendment) Act of 2022, which modernizes the country’s laws on inheritance, and the application of mental health provisions in managing the affairs of those incapacitated due to mental illness.

?Who Should Consider Estate Planning for Mental Health Reasons?

1. Diagnosed Individuals: Anyone diagnosed with chronic or acute mental illnesses, such as schizophrenia, bipolar disorder, or severe depression, should consider estate planning.

2. Caregivers and Families: Family members should encourage loved ones with mental health issues to plan their estate, ensuring that their healthcare and financial needs are met.

3. Individuals Under High Stress: Individuals facing significant life pressures or stress, which can lead to breakdowns, should also plan for the future.

?Legal Tools in Mental Health Estate Planning

1. Lasting/Enduring Powers of Attorney (PoA)

Duly executed Powers of Attorney are the easiest and best tool for mental health patients. They could be Medical or Financial powers of attorney.?

Medical PoA: Grant a trusted individual the authority to make healthcare decisions when the person is incapacitated due to mental illness. The PoA should specifically mention psychiatric care if mental illness is a concern.?

Financial PoA: Allow someone to manage the person’s finances, such as paying bills, managing investments, and handling property matters. Without a PoA, family members may face difficulties accessing financial resources.????

2. Trusts

Living Trusts: A living trust allows a person to place their assets under management while still alive, with a trustee managing those assets if they become incapacitated. Trusts offer a high level of control and can be structured to provide for medical and living expenses, ensuring the individual with mental illness is cared for without the need for court intervention.??????

3. Wills?

Wills are also essential in estate planning for individuals with mental health challenges. A will can provide for the future care of dependents and allocate assets according to the individual’s wishes, helping avoid family conflicts should death arise.

The Succession (Amendment) Act of 2022 includes provisions to protect vulnerable individuals, such as those with mental illness. For instance, it provides that property left to a person with mental incapacity can be managed by a trustee, ensuring the individual’s needs are met.

Mental Capacity and execution of estate planning tools

One of the key concerns in estate planning for those with mental illness is mental capacity. Ugandan courts and the Succession Amendment Act recognise instruments made by a person suffering from delusions or other mental illnesses if it is established that the maker of the document had cognitive capacity and fully understood the nature of the document and its effects. This is critical because a person suffering from mental illness may have periods of lucidity where they can make valid legal decisions. However, a will made during a period of mental incapacity could be challenged in court, leading to lengthy legal disputes.

?Steps for Effective Estate Planning for Mental Health

1. Start Early: Estate planning should begin as soon as there are signs of mental illness or a diagnosis. Early planning allows the individual to make clear decisions while they are still mentally capable.???

2. Consult Experts: Engage professionals such as estate planning attorneys and financial advisors familiar with mental health issues. They can ensure that documents like PoAs and trusts are properly drafted and legally sound.

3. Create a Mental Health Provision: Some estate planning documents can include specific provisions for mental health care, detailing the type of care the person desires if they become incapacitated.

4. Family Communication: Discuss estate plans with trusted family members to reduce the potential for conflict and ensure they are aware of the individual’s wishes.

5. Update Regularly: Estate plans should be reviewed and updated regularly, particularly if the individual’s mental health deteriorates or if there are changes in family dynamics.

?Conclusion

The incident I witnessed this morning—a naked woman talking to herself in public—is a chilling reminder of the fragility of mental health and how anyone can suddenly find themselves unable to manage their affairs. With mental illness affecting millions of Ugandans, estate planning for mental health reasons is a crucial safeguard that can ensure individuals and their families are protected. By using tools such as Powers of Attorney, Trusts, and Wills, individuals can take control of their future, even if they lose the ability to make decisions for themselves. Legal provisions in Uganda, like the Succession (Amendment) Act and case law, provide a framework for ensuring the effective management of estates in such situations. Taking the time to plan can alleviate the burden on families and provide peace of mind, knowing that loved ones are cared for, even during the most challenging times of mental illness.