OPEN ADOPTION: Estate Planning for the Adoptive Family

Estate Planning for the Adoptive Family

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By Cheryl N. Smith, Esq.

My husband and I recently adopted a baby girl through domestic agency adoption. She is just the love of our lives and we have thoroughly enjoyed every minute of learning how to be her parents.

In addition to being a new adoptive mother, I am also an estate planning attorney, so after our daughter was born, I sat down to rewrite our Wills. I realized that the fact that we have an adopted child raised a whole host of questions which, even after nine years of practice, took on a whole new meaning to me. The more I thought about it, the more I realized that there are several issues and decisions that parents in adoptive families must be educated about that do not exist in families with only biological children.

Estate Planning in General

Every parent that has a minor child needs to have an estate plan in order to ensure that child is protected and cared for, both personally and financially. An estate plan typically consists of a set of documents that set forth your wishes with respect to your person (i.e., health care decisions), your estate (i.e., financial decisions) and your children (i.e., guardianship decisions).

The documents include a Will, a Trust, a Health Care Proxy, a Durable Power of Attorney, and a Parental Appointment of Guardian for Minors. While a good estate planning attorney can walk you through what each of these documents does, there are additional issues specific to adoption that an adoptive parent must consider when establishing an estate plan. Some of these issues are discussed below.

Choice of Guardian

Choosing a guardian to care for your children in the event you become incapacitated or die is never an easy decision for any parent. But when you are an adoptive parent, it is even more complicated. The person you select to fill this role must be sensitive to the unique circumstances of your family, and it may require some extra thought and direction on your part to make sure your wishes are carried out.

Things to consider include making sure your chosen guardian has all the facts about your child’s adoption so that as appropriate, they can share this information with your child. Also, if you are in an open adoption, will the person you chose as guardian follow through with helping to maintain that open relationship? In my own Will, I specifically state that if a nominated guardian is unwilling or unable to maintain a relationship with our daughter’s birth parents, that they respectfully decline to serve as guardian, in which case the nominated alternates will step in.

I often recommend that adoptive parents prepare a letter, to be kept with their estate planning documents, spelling out the circumstances surrounding their child’s adoption and giving directions regarding continued contact with the birth family and anything else they feel is important about their child’s adoption.

Inheritance Rights

Before your adoption is finalized, your child has no legal rights to your estate. Depending on from where your child is adopted and the type of adoption you have, it can take anywhere from 6 months to a matter of years to finalize an adoption.

As soon as your child is placed with you, assuming it is intended to be a permanent placement, you should consider signing new Wills to include that child. Your will can include language that treats a child placed for adoption the same as a biological child or a child whose adoption has been finalized.

Trusts

I always recommend that parents of young children leave their assets to a trust for the benefit of their child. It is never advisable to leave assets to a minor, first and foremost because legally they cannot take control of an inheritance, but also because leaving assets to a minor means continued court involvement and oversight until your child reaches the age of majority.

With adoption, and particularly open adoption, the need for a trust is magnified as there may be people other than your immediate family that have a direct interest in your child’s life and well being. Keeping assets held for your child in a Trust under the control of a Trustee that you have chosen (rather than being subject to judicial process) is the best way to protect your child’s interests and preserve your assets for their benefit.

Because a Trust is usually not a public document (as opposed to a Will which gets filed with the Probate Court), it also serves as a mechanism to privately set forth special financial considerations for your child, as further discussed below.

Special Financial Considerations

There may be costs associated with raising an adopted child that go beyond making sure they are clothed, sheltered, fed and educated. If your plan for your child includes annual visits with the birth family, or a trip to the country from where they were adopted, this is something you should spell out. If they were adopted internationally, and you want them to have exposure to the culture of their homeland, you should incorporate provisions in your Trust specifically directing your Trustee to pay for travel, cultural programs, or anything else that might be related.

Supplemental Needs Trusts

If your child has any disabilities or special needs, it will be even more important that you provide for him or her after you are gone. You should consider establishing a supplemental needs trust for your child to ensure that your child meet the financial eligibility rules for private or government assistance programs while preserving the assets you leave to him or her for needs not met by such programs.

Continued Planning

Finally, you should periodically review your estate plan with an experienced estate planning attorney. Changes in the law, your family structure or financial situation are all events that warrant a revisit of your plan as they can have a dramatic impact on your estate plan.

Cheryl N. Smith is an estate planning attorney at the law firm of Bass, Doherty and Finks, P.C. www.bassdoherty.com She is also mom to her beautiful daughter adopted at birth through domestic, open adoption. She can be reached via email at csmith@bassdoherty.com or via telephone at (617)787-8948.

Copyright (c) 2009 Cheryl N. Smith

NATIONAL ADOPTION MONTH: Lifelong Issues in Adoption

Lifelong Issues in Adoption

By Deborah N. Silverstein and Sharon Kaplan

Adoption is a lifelong, intergenerational process which unites the triad of birth families, adoptees and adoptive families forever. Adoption, especially of adolescents, can lead to both great joy and tremendous pain. Recognizing the core issues in adoption is one intervention that can assist triad members and professionals working in adoption better to understand each other and the residual effects of the adoption experience.

Adoption triggers seven lifelong or core issues for all triad members, regardless of the circumstances of the adoption or the characteristics of the participants:

• Loss
• Rejection
• Guilt and shame
• Grief
• Identity
• Intimacy
• Mastery/control

Clearly, the specific experiences of triad members vary, but there is a commonality of affective experiences which persists throughout the individual’s or family’s life cycle development. The recognition of these similarities permits dialogue among triad members and allows those professionals with whom they interface to intervene in proactive as well as curative ways.

The presence of these issues does not indicate, however, that either the individual or the institution of adoption is pathological or pseudopathological. Rather, these are expected issues that evolve logically out of the nature of adoption. Before the recent advent of open and cooperative practices, adoption had been practiced as a win/lose or adversarial process. In such an approach, birth families lose their child in order for the adoptive family to gain a child. The adoptee was transposed from one family to another with time-limited and, at times, short-sighted consideration of the child’s long-term needs. Indeed, the emphasis has been on the needs of the adults – on the needs of the birth family not to parent and on the needs of the adoptive family to parent. The ramifications of this attitude can be seen in the number of difficulties experienced by adoptees and their families over their lifetime.

Many of the issues inherent in the adoption experience converge when the adoptee reaches adolescence. At this time three factors intersect: an acute awareness of the significance of being adopted; a drive toward emancipation; and a biopsychosocial striving toward the development of an integrated identity.

It is not our intent here to question adoption, but rather to challenge some adoption assumptions, specifically, the persistent notion that adoption is not different from other forms of parenting and the accompanying disregard for the pain and struggles inherent in adoption.

However, identifying and integrating these core issues into pre-adoption education, post-placement supervision, and all post-legalized services, including treatment, universalizes and validates triad member’s experiences, decreasing their isolation and feelings of helplessness.

LOSS

Adoption is created through loss; without loss there would be no adoption. Loss then, is at the hub of the wheel. All birthparents, adoptive parents, and adoptees share in having experienced at least one major, life-altering loss before becoming involved in adoption. In adoption, in order to gain anything, one must first lose – a family, a child, a dream. It is these losses and the way they are accepted and, hopefully, resolved which set the tone for the lifelong process of adoption.

Adoption is a fundamental, life-altering event. It transposes people from one location in the human mosaic into totally new configuration. Adoptive parents, whether through infertility, failed pregnancy, stillbirth, or the death of a child have suffered one of life’s greatest blows prior to adopting. They have lost their dream child. No matter how well resolved the loss of bearing a child appears to be, it continues to affect the adoptive family at a variety of points throughout the family'’ live cycle issues of burgeoning sexuality and impending emancipation may rekindle the loss issue.

Birthparents lose, perhaps forever, the child to whom they are genetically connected. Subsequently, they undergo multiple losses associated with the loss of role, the loss of contact, and perhaps the loss of the other birthparent, which reshape the entire course of their lives.

Adoptees suffer their first loss at the initial separation from the birth family. Awareness of their adopted status is inevitable. Even if the loss is beyond conscious awareness, recognition, or vocabulary, it affects the adoptee on a very profound level. Any subsequent loss, or the perceived threat of separation, becomes more formidable for adoptees than their non-adopted peers.

The losses in adoption and the role they play in all triad members lives have largely been ignored. The grief process in adoption, so necessary for healthy functioning, is further complicated by the fact that there is no end to the losses, no closure to the loss experience. Loss in adoption is not a single occurrence. There is the initial, identifiable loss and innumerable secondary sub-losses. Loss becomes an evolving process, creating a theme of loss in both the individual’s and family’s development. Those losses affect all subsequent development.

Loss is always a part of triad members’ lives. A loss in adoption is never totally forgotten. It remains either in conscious awareness or is pushed into the unconscious, only to be reawakened by later loss. It is crucial for triad members, their significant others, and the professional with whom they interface, to recognize these losses and the effect loss has on their lives.

Birth Parent	Adopted Person	Adoptive Parent
"I don’t know why but I always miss the supervised visits right before we go to court."	"You don’t love me anyway – I’m out of here."	"I know my son George will blow it right before his birthday party again."

REJECTION

Feelings of loss are exacerbated by keen feelings of rejection. One way individuals seek to cope with a loss is to personalize it. Triad members attempt to decipher what they did or did not do that let to the loss. Triad members become sensitive to the slightest hint of rejection, causing them either to avoid situation where they might be rejected in order to validate their earlier negative self-perceptions.

Adoptees seldom are able to view their placement into adoption by the birthparents as anything other than total rejection. Adoptees even at young ages grasp the concept that to be "chosen" means first that one was "un-chosen", reinforcing adoptees’ lowered self-concept. Society promulgates the idea that the "good" adoptee is the one who is not curious and accepts adoption without question. At the other extreme of the continuum is the "bad" adoptee who is constantly questioning, thereby creating feelings of rejection in the adoptive parents.

Birthparents frequently condemn themselves for being irresponsible, as does society. Adoptive parents may inadvertently create fantasies for the adoptee about the birth family which reinforce these feelings of rejection. For example, adoptive parents may block an adolescent adoptee’s interest in searching for birthparents by stating that the birthparents may have married and had other children. The implication is clear that the birthparents would consider contact with the adoptee an unwelcome intrusion.

Adoptive parents may sense that their bodies have rejected them if they are infertile. This impression may lead the infertile couple, for example, to feel betrayed or rejected by God. When they come to adoption, the adoptors, possibly unconsciously, anticipate the birthparents’ rejection and criticism of their parenting. Adoptive parents struggle with issues of entitlement, wondering if perhaps they were never meant to be parents, especially to this child. The adopting family, then, may watch for the adoptee to reject them, interpreting many benign, childish actions as rejection. To avoid that ultimate rejection, some adoptive parents expel or bind adolescent adoptees prior to the accomplishment of appropriate emancipation tasks.

Birth Parent	Adopted Person	Adoptive Parent
"I don’t tell anyone about the child I relinquished – they’d say, ‘how could you give away your own child’ and have nothing to do with me."	"I can’t imagine that no one in all of China wanted me – I must be pretty weird."	"Well, God didn’t like me very much – I could never birth a child."

GUILT/SHAME

The sense of deserving such rejection leads triad members to experience tremendous guilt and shame. They commonly believe that there is something intrinsically wrong with them or their deeds that caused the losses to occur. Most triad members have internalized, romantic images of the American family which remain unfulfilled because there is no positive, realistic view of the adoptive family in our society.

For many triad members, the shame of being involved in adoption per se exists passively, often without recognition. The shame of an unplanned pregnancy, or the crisis of infertility, or the shame of having been given up remains unspoken, often as the unconscious motivator.

Adoptees suggest that something about their very being caused the adoption. The self-accusation is intensified by the secrecy often present in past and present adoption practices. These factors combine to lead the adoptee to conclude that the feelings of guilt and shame are indeed valid.

Adoptive parents, when they are diagnosed as infertile, frequently believe that they must have committed a grave sin to have received such a harsh sentence. They are ashamed of themselves, of their defective bodies, of their inability to bear children.

Birthparents feel tremendous guilt and shame for having been intimate and sexual; for the very act of conception, they find themselves guilty.

Birth Parent	Adopted Person	Adoptive Parent
"My mother said I broke her heart when I got pregnant. I’m just no good."	"If I was better my birth parents would have kept me – I guess I cried too much."	"If I were good enough to be a parent, God would have given me a baby."

GRIEF

Every loss in adoption must be grieved. The losses in adoption, however, are difficult to mourn in a society where adoption is seen as a problem-solving event filled with joy. There are no rituals to bury the unborn children; no rites to mark off the loss of role of caretaking parents; no ceremonies for lost dreams or unknown families. Grief washes over triad members' lives, particularly at times of subsequent loss or developmental transitions.

Triad members can be assisted at any point in the adoption experience by learning about and discussing the five stages of grief: denial, anger, bargaining, depression, and acceptance (Kubler-Ross 1969).

Adoptees in their youth find it difficult to grieve their losses, although they are in many instances aware of them, even as young children. Youngsters removed from abusive homes are expected to feel only relief and gratitude, not loss and grief. Adults block children’s expressions of pain or attempt to divert them. In addition, due to developmental unfolding of cognitive processes, adoptees do not fully appreciate the total impact of their losses until their adolescence or, for many, until adulthood. This delayed grief may lead to depression or acting out through substance abuse or aggressive behaviors.

Birthparents may undergo an initial, brief, intense period of grief at the time of loss of the child, but are encouraged by well-meaning friends and family to move on in their lives and to believe that their child is better off. The grief, however, does not vanish, and, in fact, it has been reported that birth mothers may deny the experience for up to ten years (Campbell 1979).

Adoptive parents’ grief over the inability to bear children is also blocked by family and friends who encourage the couple to adopt, as if children are interchangeable. The grief of the adoptive parents continues as the child grows up since the adoptee can never fully meet the fantasies and expectations of the adoptive parents.

"As night follows day – grief follows loss."

Birth Parent	Adopted Person	Adoptive Parent
"When I had my second child, I could only think about the one I gave away."	"I feel angry and since I can’t talk about it, I’ll show you by my actions."	"I already told Andy about his adoption – he’s known about it all of his life I can’t understand why he’s acting out now that he’s 12."

IDENTITY

Adoption may also threaten triad members’ sense of identity. Triad members often express feelings related to confused identity and identity crises, particularly at times of unrelated loss.

Identity is defined both by what one is and what one is not. In adoption, birthparents are parents and are not. Adoptive parents who were not parents suddenly become parents. Adoptees born into one family, a family probably nameless to them now, lose an identity and then borrow one from the adopting family.

Adoption, for some, precludes a complete or integrated sense of self. Triad members may experience themselves as incomplete, deficient, or unfinished. They state that they lack feelings of well-being, integration, or solidity associated with a fully developed identity.

Adoptees lacking medical, genetic, religious, and historical information are plagued by questions such as Who are they? Why were they born? Were they in fact merely a mistake, not meant to have been born, an accident? This lack of identity may lead adoptees, particularly in adolescent years, to seek out ways to belong in more extreme fashion than many of their non-adopted peers. Adolescent adoptees are overrepresented among those who join sub-cultures, run away, become pregnant, or totally reject their families.

For many couples in our society a sense of identity is tied to procreation. Adoptive parents may lose that sense of generativity, of being tied to the past and future, often created through procreation.

Adoptive parents and birthparents share a common experience of role confusion. They are handicapped by the lack of positive identity associated with being either a birthparent or adoptive parent (Kirk 1964). Neither set of parents can lay full claim to the adoptee and neither can gain distance from any problems that may arise.

"Who the hell am I?"

Birth Parent	Adopted Person	Adoptive Parent
"I’m a parent, but not a real parent – I never know how to answer when people ask, ‘do you have any children?’"	"If I can’t belong anywhere else I can belong to the Crips or the Moonies."	"I cringe when people ask, "Do you have any children of you own?"

 

INTIMACY

The multiple, ongoing losses in adoption, coupled with feelings of rejection, shame, and grief as well as an incomplete sense of self, may impede the development of intimacy for triad members. One maladaptive way to avoid possible reenactment of previous losses is to avoid closeness and commitment.

Adoptive parents report that their adopted children seem to hold back a part of themselves in the relationship. Adoptive mothers indicate, for example, that even as an infant, the adoptee was "not cuddly". Many adoptees as teen state that they truly have never felt close to anyone. Some youngsters declare a lifetime emptiness related to a longing for the birthmother they may have never seen.

Due to these multiple losses for both adoptees and adoptive parents, there may also have been difficulties in early bonding and attachment. For children adopted at older ages, multiple disruptions in attachment and/or abuse may interfere with relationships in the new family (Fahlberg 1979 a, b).

The adoptee’s intimacy issues are particularly evident in relationships with members of the opposite sex and revolve around questions about the adoptee’s conception, biological and genetic concerns, and sexuality.

The adoptive parents’ couple relationship may have been irreparably harmed by the intrusive nature of medical procedures and the scapegoating and blame that may have been part of the diagnosis of infertility. These residual effects may become the hallmark of the later relationship.

Birthparents may come to equate sex, intimacy, and pregnancy with pain leading them to avoid additional loss by shunning intimate relationships. Further, birthparents may question their ability to parent a child successfully. In many instances, the birthparents fear intimacy in relationships with opposite sex partners, family or subsequent children.

Birth Parent	Adopted Person	Adoptive Parent
"It always hurts – but somehow I pick men who will hurt me again."	"The only think I know about my birthparents is they had sex at 14."	"I wonder if I love my son as much as I would if he were born to me?"

MASTERY/CONTROL

Adoption alters the course of one’s life. This shift presents triad members with additional hurdles in their development, and may hinder growth, self-actualization, and the evolution of self-control.

Birthparents, adoptive parents, and adoptees are all forced to give up control. Adoption, for most, is a second choice. Birthparents did not grow up with romantic images of becoming accidentally pregnant or abusing their children and surrendering them for adoption. In contrast, the pregnancy or abuse is a crisis situation whose resolution becomes adoption. In order to solve the predicament, birthparents must surrender not only the child but also their volition, leading to feelings of victimization and powerlessness which may become themes in birthparents’ lives.

Adoptees are keenly aware that they were not party to the decision which let to their adoption. They had no control over the loss of the birth family or the choice of the adoptive family. The adoption proceeded with adults making life-altering choices for them. This unnatural change of course impinges on growth toward self-actualization and self-control. Adolescent adoptees, attempting to master the loss of control they have experienced in adoption, frequently engage in power struggles with adoptive parents and other authority figures. They may lack internalized self-control, leading to a lowered sense of self-responsibility. These patterns, frequently passive/aggressive in nature, may continue into adulthood.

For adoptive parents, the intricacies of the adoption process lead to feelings of helplessness. These feelings sometimes cause adoptive parents to view themselves as powerless, and perhaps not entitled to be parents, leading to laxity in parenting. As an alternative response, some adoptive parents may seek to regain the lost control by becoming overprotective and controlling, leading to rigidity in the parent/adoptee relationship.

Birth Parent	Adopted Person	Adoptive Parent
"It all happened to me – I guess I was just born a victim."	"The most important decision of my life was made without my say – it doesn’t make sense so why don’t you understand that I’m no good at cause and effect thinking."	"I tried everything and still didn’t have a child – so I don’t really feel entitled to ACT like a parent."

 

SUMMARY

The experience of adoption, then can be one of loss, rejection, built/shame, grief, diminished identity, thwarted intimacy, and threats to self-control and to the accomplishment of mastery. These seven core or lifelong issues permeate the lives of triad members regardless of the circumstances of the adoption. Identifying these core issues can assist triad members and professionals in establishing an open dialogue and alleviating some of the pain and isolation which so often characterize adoption. Triad members may need professional assistance in recognizing that they may have become trapped in the negative feelings generated by the adoption experience. Armed with this new awareness, they can choose to catapult themselves into growth and strength.

Triad members may repeatedly do and undo their adoption experiences in their minds and in their vacillating behaviors while striving toward mastery. They will benefit from identifying, exploring and ultimately accepting the role of the seven core issues in their lives.

The following tasks and questions will help triad members and professionals explore the seven core issues in adoption:

• List the losses, large and small, that you have experienced in adoption.
• Identify the feelings associated with these losses.
• What experiences in adoption have led to feelings of rejection?
• Do you ever see yourself rejecting others before they can reject you? When?
• What guilt or shame do you feel about adoption? What feelings do you experience when you talk about adoption?
• Identify your behaviors at each of the five stages of the grief process. Have you accepted your losses?
• How has adoption impacted your sense of who you are?

This article was can be read along with other information at FAIR - Families Adopting In Response.