Fiduciary Responsibility When Serving As A Trustee/Executor/Agent
Many people typically hear the term ‘fiduciary’ as it relates to financial advisors.
However, the term – and the idea of fiduciary responsibility – defines anyone who has a legal duty to act in another’s best interest.
Executors, trustees, guardians, conservators, health care proxies, and agents under Durable Powers of Attorney are all fiduciaries and have fiduciary responsibility.
Fiduciaries Are Vital to Long-Term Health And Estate Planning
One purpose of estate and long-term care planning is to determine exactly who will serve as your fiduciaries. The law only states that a fiduciary for consideration in long-term health and estate planning be legally competent, meaning they are over 18 years of age and capable of managing his or her affairs.
The issues that arise without having a previously executed a Durable Power of Attorney and a Health Care Proxy, are many. For instance, should a medical crisis arise a probate court would appoint a Guardian to manage your affairs. Such an appointment will delay services, pressure relatives, expose your affairs to public scrutiny, and cost a great deal of money.
Parents who fail to nominate a guardian for their minor children risk having someone they don’t trust or don’t know being named by the court to raise their children.
Selecting A Health Care Fiduciary
When choosing a health care proxy, you want to select someone who will be readily available in the case of an emergency. The person you choose and who accepts this duty should be someone young enough that they are likely to be around should you live to a ripe old age. In addition, they should be able to discuss your condition with your physician. Knowledge of medicine may be useful, but more important are whether their views on medical treatment coincide with your own, whether they can ask relevant questions of physicians, and whether they can make difficult decisions under great pressure.
Selecting A Durable Power of Attorney
A Durable Power of Attorney is a person you give the responsibility of managing your financial affairs should you be unable to do so. This person should be very trustworthy, diligent in reviewing and paying bills, organized to keep track of invoices and investments, experienced in financial matters, and sensitive to your material needs. Ideally, this person should live nearby and be financially independent and, therefore, free from temptation.
There are several other fiduciary roles involved in the setting up of trusts and there are special needs trusts required to provide supplementary support for loved ones who are disabled.
If you have any questions about any of the above-mentioned roles and/or would like to discuss setting up an estate plan, give my office a call at 404-370-0696. It’s so much better to be prepared for the worst-case scenarios and never have to use them than not to have them in place should a situation arise.