Professional Fiduciaries: When To Use One And What To Expect
Why Consider Professional Fiduciaries?
Most people who have heard the term “fiduciary” typically think it applies only to financial advisors. Yet, professional fiduciaries encompass much more.
However, the term encompasses much broader territory. Black’s Law Dictionary defines a fiduciary as a person “invested with rights and powers to be exercised for the benefit of another person.”
Thus, as you can see, fiduciary is a legal term that can apply to professionals as well as non-professionals. Non-professionals are legally designated representatives who are entrusted with the care of property or funds. Depending on the complexities of your individual circumstances it may make more sense to hire professional fiduciaries. From professionals you can usually expect scrupulous good faith and candor.
In estate planning and probate law, a “fiduciary” might refer to a number of important roles:
This is who guides your case through probate courts. Additionally, they follow any directions set down by your will. The duties may include collecting, inventorying, managing, and protecting estate assets. Duties could also involve handling creditors and resolving debts of the estate. Additionally, fiduciaries provide regular reports and accounting, make distributions, and close the estate.
A person the court appoints to manage a protected individual’s estate and finances. The court creates a conservatorship when someone can’t effectively manage their own property and financial decisions.An individual can request the appointment of a conservator for themselves, if they recognize that they are unable to manage their property and affairs effectively due to age or physical infirmity.
A trustee is the person responsible for managing and distributing any of the assets held in a trust, while also handling several important duties that may arise throughout the duration of the trust administration — including overseeing tax filings for the trust and communicating with beneficiaries of the trust. Generally, with a revocable living trust, the person who creates the trust (known as the settlor or grantor), will name themselves as trustee to maintain control of their assets for as long as possible, with a successor trustee in place to take over in the event that they can no longer perform the responsibilities for themselves.
Agent, advocate, or attorney-in-fact
A Power of Attorney (POA) is a written instrument that gives legal authority to a third party (known as the agent or attorney-in-fact) to act on the behalf of someone else (known as the principal). In estate planning, a durable power of attorney is another tool. A durable power of attorney ensures someone you trust manages your financial and health care decisions when you can no longer do so. With powers of attorney, you can exert a great deal of control over your chosen agent, granting them broad power to make decisions on your behalf, or limiting their scope to only a few pressing matters.
Expect More From Professional Fiduciaries
Often, with individual estates that are not complex, the testator will typically assign their spouse or an adult child, relative, or close family friend to act on their behalf. Clearly, a professional fiduciary in any of the above-mentioned roles can and should be expected to perform their duties scrupulously.
If you are ready to create an estate and asset protection plan, give my office a call at 404-370-0696. As we go over your specific circumstances, we can discover together whether you need to hire professional fiduciaries for the various roles or whether you have loved ones that can and are willing to carry out the fiduciary duties that will be required.