We all know adults who are alone in the world. Perhaps the person is divorced, widowed or single. Perhaps he or she never had children or is estranged from them. Perhaps he or she has outlived siblings and other family members, or, as is unfortunately common in Arizona, a couple has no children, is alienated from them and their closest family members are far away. Or they don’t trust any of them to make the right decisions.
For whatever reason, it can be difficult for people in any of these situations to appoint someone as their executor, successor trustee, power of attorney or health care surrogate in the event they can’t make decisions due to accident or illness or upon their death. Unfortunately, these folks often avoid making any kind of decision and avoid completing necessary paperwork. When the worst happens and they lose their capacity to make decisions, they are out of luck.
There are actually solutions to these situations including trust companies or professional fiduciaries.
What is a professional fiduciary?
A fiduciary is a person who assumes responsibility as money managers, trustees or agents under financial or health care powers of attorney. Fiduciaries can serve by court appointment or by private agreement. If appointed by the court, fiduciaries are known as guardians or conservators.
A professional fiduciary can also be an individual or corporate entity like a bank or financial institution’s trust department or a trust company. Each of these specializes in being a trustee of various kinds of trusts and in managing estates. When you die, the corporation takes the places of your executor with powers of attorney and has the power to collect debts, settle claims for debt and taxes, detailing your assets for the courts and distributing wealth to your beneficiaries.
The next step up is a professional fiduciary who serves as an agent for power of attorney or health care surrogate, or as a trustee. In this instance, the professional fiduciary carries out instructions in any written documents like trusts, powers or attorney or advanced health care directives. In addition, where the law allows, this type of professional fiduciary can use their own best judgment to handle the incapacitated person’s affairs. This type of fiduciary must be selected and arrangements made in writing while the adult still has the legal capacity to make such decisions. The services of the fiduciary will not kick in until the individual lacks the capacity to make decisions for him or herself.
Last but not least, the most restrictive type of professional fiduciary is appointed by the court and is known as a guardian or conservator. The guardian is legally appointed to manage the incapacitated person (the ward’s) property or person and everything is overseen by the court.
We all want control over our lives, so it makes sense to bite the bullet and make decisions in advance for our own care should something happen. By taking steps now, we can screen professional fiduciaries and select the person or organization we believe will manage our affairs in the manner we would like. Talking to an estate planning attorney is a good first step. The attorney can suggest ways for us to explore professional fiduciaries in the area in which we live until we find the right person to fit out needs.