How Mental Health Clauses are Reshaping Wills

There was a time when the stigma associated with mental health had made it a taboo topic. If you considered seeing a psychologist or a therapist, people would’ve simply laughed it off. Now with time and growing awareness about mental health issues, there’s been an increase in the acknowledgement of mental health being considered a big part of an individual’s well-being. 

It should come as no surprise then, that issues surrounding mental health now feature prominently from a legal perspective. The inclusion of mental health clauses in your estate planning may be an unconventional but necessary approach. This is more so in the case of property protection wills and trusts.

This article seeks to explore how including mental health clauses in property protection will help safeguard & honour you and your beneficiaries/heirs well being.

1. Understanding Property Protection Will

Property protection will is a legally binding will that protects your spouse/partner/children’s portion of the property without losing its value to long-term care fees. In other words, it simply means that your surviving spouse/partner or beneficiary can inherit the full value of your property without subjecting it to any long-term care fees associated with your residential care. 

It acts as a trust where a beneficiary’s inheritance will be protected even in cases where your partner/spouse chooses to remarry. A property protection will is a good option if you are already ill and/or anticipating residential care at some point in the foreseeable future.

For example, if your partner has a history of poor credit and is financially irresponsible, there is a possibility that they sell the property after your demise to pay off accumulated debts. This would leave your beneficiary or partner homeless. Under property protection will, a surviving spouse or partner cannot sell the property unless it is to purchase another property. Any excess capital from the sale will most likely be invested and the resulting interest can be used as income to pay off debts by the surviving partner/spouse.        

2. Importance of including mental health clauses

All wills share a key common feature – mental capacity. The person must be of sound mind, able to understand the gravity of decisions being made and their subsequent implications on both themselves and their beneficiaries. Their understanding or ability to undertake estate planning aspects including the appointment of executors & enlisting beneficiaries, must not be impaired on account of illness, duress or undue influence.

But imagine a situation where one or more of your beneficiaries are facing mental health challenges and are unable to take upon themselves the execution of your will. What happens then? They already face the burden of care like therapy or rehabilitation and are in no position to manage their inheritance. 

A mental health clause here can protect your beneficiary’s rights to access benefits from your estate towards their physical, financial and mental well-being. It could also include the appointment of a legal guardian, or trustee to oversee the distribution of the estate. Additionally, other provisions like caregivers, directives on the proper usage of inheritance funds, and health-related costs can be part of these mental health clauses.      

3. Benefits of including Mental Health clauses on a Will

Including a mental health clause in property protection will can be incredibly useful when your surviving partner/spouse/beneficiaries are dealing with mental health challenges. Estate planning without making provisions for their long-term care is not a prudent move. 

Mental health care and rehabilitation are generally expensive affairs. Setting aside funds/resources to cover these costs is an important consideration to bear in mind. Beneficiaries unable to manage their inheritance are especially vulnerable to fund mismanagement, potential scams, legal disputes challenging their mental capacity, and an eventual loss of their assets. Setting a mental health clause in your property protection will will help avoid these hassles and protect your beneficiary.      

4. Practical steps to take

There are legal and ethical considerations to take into account even if you are well-intentioned about safeguarding the rights of your beneficiaries. Since mental health clauses form part of an enforceable legal instrument, it is essential to ensure they comply with current legal & ethical requirements. This may pertain to confidentiality agreements, appointment of trustees, special funds, healthcare providers and residential care. It is also important to check where government initiatives and schemes can be applied to ensure your beneficiary’s utmost safety and protection. 

A consultation with an experienced estate planning attorney or solicitor can help you address your concerns clearly and explore possible legal solutions. For example, while most wills, when written unambiguously, have lower chances of being disputed, it may not be the case when it comes to mental health clauses. Therefore, an addition of a no-contest clause is considered to be a legally prudent way of protecting your beneficiary.

Additionally, the inclusion of professional medical opinions needs to be factored in while drafting mental health clauses. In the same vein, it’s also important to consider getting your ‘property protection will’ to be signed by a doctor/medical professional to certify your testamentary capacity. It’s an added protective measure to ensure your will is not contested.

You could also include a “Letter of Wishes” to supplement your mental health clauses in the property protection will. Though not legally binding, it acts as a handy guideline for your executors and attorney to honour and respect your wishes regarding the well-being of your beneficiaries.

Conclusion

Property protection wills are not the only type of will that would benefit from a mental health clause. Including mental health clauses in your will is a fairly modern, and sensitive approach but well suited to the times we live in. Individuals battling mental health issues need our sensitivity & compassion. 

As a result, it becomes vitally important when we are trying to protect their legal, financial and physical well-being through a will. We hope the information covered in this article has given you an idea of the various considerations you need to factor in when including a mental health clause.

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