Adverse childhood experiences management in estate planning - by Daniel L. O’Neil

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on 18 July 2016
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Lemony Snicket’s A Series of Unfortunate Events is masterful for estate planning & probate topics because Count Olaf and his tattoo are so memorable and well-done as one character that probably should not have been allowed to care for (or interact with) the three minor Baudelaire children. 

Nearly every family has a Count Olaf of one type or another; but not every family puts together a comprehensive estate plan to keep their Count Olaf away from their minor children and Violet’s inheritance.

Many of our estate planning topics on the law blog focus on the specific needs of individuals without children – however more estate plans that we bring to our formal Will execution ceremonies than not include plans for minor children. I spent last week at the 15th Annual Zealous Advocacy Continuing Legal Education (“CLE”) Program hosted by the Center for Children, Law, and Policy at the University of Houston Law Center where the theme and focus of this year’s CLE was on identifying adverse childhood experiences (“ACEs”) in juvenile cases which could be included in a holistic defense plan depending on the specifics – the most important interview question you can ask a child that has legal trouble is “what happened to you at home?” rather than “what’s wrong with you!?!” So this topic is timely for three reasons, the last of which we will get to later on.

But first – what are ACEs? There are ten types of childhood trauma measured to produce an ACE score. Five are personal: physical abuse, verbal abuse, sexual abuse, physical neglect, and emotional neglect. Five are related to other family members: a parent who’s an alcoholic, a mother who’s a victim of domestic violence, a family member in jail, a family member diagnosed with a mental illness, and the disappearance of a parent through divorce, death, or abandonment. Each type of trauma counts as one.

ACEs are strongly related to development of risk factors for disease and overall well-being throughout lifetime. If you could ask a person only a few questions and be able to determine if they have a life expectancy twenty years less than a person with zero ACEs, that is the power of identifying ACEs in a person’s childhood and upbringing. The original study was conducted at Kaiser Permanente from 1995 to 1997 for an upper middle class population, established, mid-life type of crowd in San Diego and the results were shocking how many people from that socioeconomic background had numerous ACEs.

Almost two-thirds of that well-heeled population reported at least one ACE and more than one in five reported 3+ ACEs. Follow-up studies have firmly revealed a dose-response relationship: the more ACEs, the worse that person generally has it throughout their lifetime. 6+ ACEs leads to a life expectancy of twenty years less than a person with zero ACEs. More than zero ACEs increases the risk for alcoholism, COPD, depression, illicit drug use, ischemic heart disease, liver disease, intimate partner violence, STDs, smoking, suicide attempts, and more. So long story short, ACEs are important to know about in an awareness sense to be able to put in the effort to manage them in our childrens’ lives.

How does this relate to estate planning? Parents of minor children that do not have an estate plan - and meet an untimely end (or suffer from disability/incapacity) – might find their minor children being cared for by someone they would not have chosen. The person ultimately taking care of the kids might not be financially savvy or even honest. The person ultimately taking care of the kids might have a drinking or drugs problem (you knew about when you were alive) which will affect the level of care they can provide to minor children. The person ultimately taking care of the kids might have a revolving door in their bedroom and many unsavory people might pass through the household and be able to interact with minor children in age-inappropriate ways. The person ultimately taking care of the kids might sell drugs and be committing other violent and non-violent felonies in the household that law enforcement has not quite caught onto yet but they will eventually.

Placing a minor child with an unsavory person can create all new, additional ACEs beyond the initial trauma of losing a parent (or both parents) at an early age – children be abused in a variety of ways. Children in the worst situations can suffer from toxic stress which affects their development and ultimately their life span. These are the types of things that can be avoided by designating people we trust - honest, respectable, and unlikely to abuse our children – to serve in important roles in the comprehensive estate plan. The one ACE we know about that will stem from losing a parent can be kept at one with proper management and planning. Otherwise without a plan, one ACE can quickly become six or ten if they go into a bad situation with a bad person that makes a bad home life for them in the new phase of their early growth and development.

The best way to make sure that the environment a minor child could ever be placed in is to make a plan, appoint people you trust well to take over for you if you need it, and get the documents prepared then executed confirming the plan you want to put into place should something untoward happen to you.

For families that are planning ahead the most common conversation we have is about how to prevent the black sheep of the family (who is a drunk/financially illiterate/dishonest/something else unsavory etc.) from being in the real line of succession to take over in an estate plan. For a minor child this could include managing the entire inheritance – which for some people throughout the history of Texas estate planning, probate, guardianship, and custodianship has meant frittering away that child’s inheritance on shoes, top shelf liquor, and mink coats – as well as seeing to the day to day care for the child which includes doctor and dentist appointments, school meetings, soccer games, and more. A neglectful person contributes an ACE for neglect and lack of nurturing; an abusive person contributes multiple ACEs for beating the child, emotionally abusing the child, and (by the statistics in studies what is more often than we think is common) sexually abusing the child or allowing other unsavory people passing through the household to have unsupervised access to a child where sexual abuse can happen.

After the CLE had concluded I had some much needed family time out in Montgomery County over the weekend where I was reminded that the end is coming for everyone – whether they want it or not – so it is best to have a plan in place that we feel good about so we know that the loved ones we leave behind are going to be cared for in the best possible way. If something unexpected happens on the way home from work, a hockey game, or the mall then we can know we did our best to plan for our kids and they are in the best possible position to continue their lives forward in the way we want for them to be happy, successful, and be surrounded by good people. If we leave things to chance and make no plan: we can’t sleep soundly each night knowing about what’s been left to chance. Things left to chance hardly ever work out in our favor, but there are ways to plan around that. No adult has worked their whole life to save up money to see it wasted by someone else irresponsible, when their kid is going to suffer without the new running shoes they want or having their private school tuition paid, when that inheritance was left behind to provide for necessities such as those – and not to send the irresponsible wastrel on a trip to Rome they have always wanted with money that should have been used to care for the child.

If we can help you put a plan into place to help protect your family, preserve your legacy, and facilitate the orderly transfer of family wealth then please give us a call and start the conversation with us about a comprehensive estate plan today.