Addiction is the biggest preventable killer in the UK.
Addiction is an insidious illness, permeating every strata of society. While awareness continues to grow about its impact, the nature of the condition is still prone to misunderstanding. Some take a less than sympathetic view towards those who suffer from addiction, particularly given the anti-social behaviour that can be a feature of, for example, drug and/or alcohol addiction. Reactions to such behaviour show that some people view these conditions as a moral issue or a character flaw, such as a failure of willpower, rather than as an illness.
Those of us who work with private clients cannot afford to take this approach. Given the prevalence of addiction, we will, inevitably, and possibly quite regularly, come across those with such issues and it is essential that we are alive to the signs and symptoms of this illness, we deal with it sensitively and modify our conduct and advice accordingly.
One of the first aspects of addiction that can surprise people is the number of different manifestations, which can include, sex, pornography and food addiction. These types of addiction can present subtler symptoms than alcohol and drug addiction and are even less understood within society. They can also be easier to conceal, given that the sufferer’s lack of ability to exercise control over their addiction may not manifest in the overt, anti-social way that addiction to drugs or alcohol can. The issues can therefore go on unrecognised for longer, with the sufferer living in denial for a longer period, in spite of its detrimental impact of the addiction on his/her life.
This presents challenges for the private client advisor given that, while a client remains blind to their problem, they are likely to be defensive should the issue be raised with them and quite possibly dishonest.
Another hallmark of addiction is isolation, with the sufferer retreating from society and in many cases this results in the sufferer drinking/abusing drugs/overeating/ gambling alone. This presents another barrier for the advisor who wishes to help the client but who may find it difficult to encourage them to open up and be frank about the issue. However, the advisor who deals with such issues sensitively can win the client’s trust and reassure them that whatever they tell them will be dealt with in strictest confidence.
Concealing the truth
Addiction is not the preserve of the socially disadvantaged. This is illustrated by the various high profile examples of celebrities, high-profile sportsmen, actors and other celebrities whose struggles with the condition have been publicised. Given the denial referred to above that is a feature of the condition as well as the shame that continues to exist around addiction, concealment and secrecy remain common. Dealing with those who are addicted and who also have access to financial and other resources presents its own particular challenges, given that the existence of such resources can facilitate concealment of the problem. For example, if the sufferer is not reliant on generating an income and/or has the financial backing to pay for any medical help that is required privately, then their condition may be less ‘visible’ than in the case of the sufferer who is reliant on the state and the public health system for care.
Such people are often described as ‘high-functioning addicts’ i.e. those who are able to conceal to some extent their addiction or dependency, even from those closest to them, behind the veneer of a ‘respectable’ lifestyle. It is particularly important for those who work with such clients to be attuned to the subtler signs of addictive behaviour. In fact, this is crucial given that such issues can affect capacity to make decisions. For example, the advisor who manages a fund on behalf of clients will need to be aware of and to take into account if an intended beneficiary is in active addiction. This may determine how and when funds should be released, given that financial irresponsibility may well be a concern and the advisor will need to be particularly careful to ensure the protection of the assets in such circumstances.
Another facet of the secrecy and shame often associated with addiction is collusion by the sufferer’s family and/or friends. The term ‘enabling’ refers to such behaviour and describes how friends or family may help the sufferer to avoid the consequences of their behaviour, through covering up and/or making excuses for them. This 'closing ranks' is most commonly motivated by a misguided effort to protect the sufferer, but can actually be harmful in terms of perpetuating the addictive behaviour and it is commonly viewed as a dysfunction in its own right.
The advisor dealing with families will therefore need to be alive to the fact that they may also be in denial or dishonest about the existence or extent of any problem within the family. This may extend to funding the addiction or concealing the evidence of it. This presents further challenges for the advisor concerned with preserving the long-term wealth of the family. In dealing with such situations, the advisor will need to draw on more intangible skills such as empathy; discernment and intuition, given that much may lie under the surface but not be spoken about. The advisor may have to initiate frank discussions about the issue with the client and/or the family and to express concerns even in circumstances where others may deny the existence of such an issue. In doing so, it is of course of paramount importance that advisors keep in mind who their client is and to whom they owe their professional duties.
In terms of practicalities the advisor would be wise to take instructions in person wherever possible, so that they can see for themselves what the client’s condition is and so that they have as much information as possible about their capacity to make decisions. Where appropriate, visiting the client in their home can also be a good way of picking up clues as to their true condition, through picking up on any evidence of unmanageability in their home environment.
If there is a question mark over whether the client is under the influence of any substances then of course advisors must exercise caution when taking instructions. In general, if an advisor fears that the client's instructions may shift from day to day, it would be sensible to refrain from acting on any such instructions unless and until they become consistent over a period of time. Advisors should also be attuned to any changes of behaviour in a client such as communications that appear not to make sense, significant shifts in instructions and/or a change in temperament. In more extreme cases in which the advisor is unable to obtain instructions that they are sure reflects the client's true wishes, they may have to consider whether a power of attorney would be appropriate or if they need to cease acting.
Gaining a greater understanding of addiction will help advisors to most effectively help clients as well as to protect assets. However, there are also wider reasons for advisors to educate themselves, given that addiction and dependency issues are widespread amongst those working in stressful professions such as law and finance. Such issues clearly affect advisors themselves and their colleagues as well as clients.
The need for therapeutic support within high-pressure professions is aptly illustrated by the opening of another branch of the Priory rehabilitation clinics in the City of London just before Christmas 2014. The City Mental Health Alliance also focuses on these sorts of issues. Lawcare (an organisation providing telephone support to those with addiction and mental and emotional health issues in the legal profession and their families) has recent statistics showing that the demographic of those contacting them with alcohol and drug issues is in fact changing, with the typical caller becoming increasingly younger.
Having a deeper appreciation of addiction can therefore only serve to help advisors to help not only their clients but also themselves, their colleagues, friends and family members.
If you require further information on anything covered in this briefing please contact Annmarie Carvalho (firstname.lastname@example.org; 020 3375, or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Mental Capacity page on our website.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, April 2015
 http://www.who.int/topics/substance_abuse/en/, http://www.drugabuse.gov/publications/research-reports/comorbidity-addiction-other-mental-illnesses/drug-addiction-mental-illness, http://www.dsm5.org/Documents/Substance%20Use%20Disorder%20Fact%20Sheet.pdf
MAP v MFP  EWHC 627 (Fam) – family law case involving alcohol and cocaine addiction – judge acknowledging that the husband who suffered from these conditions had an illness.
The Secrecy of Addiction.pdf218kB