Selecting a Fiduciary

In most estate planning you will be called on to select five fiduciaries: the agent on your medical power of attorney; the agent on your statutory durable power of attorney, a guardian on your declaration of guardian; the executor of your will; and the trustee of any trust you create.
For each of these positions my advice is to select the best qualified person for the job. There are some inherent problems with selecting family members.

Selecting A Fiduciary That You Can Count On

In selecting a fiduciary you are selecting someone to deal with the situation of your incapacity or death. People of your own generation or older frequently will be just as sick and incapacitated as you are or may precede you in death.
Children may be unqualified to serve because making financial decisions isn’t something they are qualified for by either training or experience. Another common problem is some children are tempted to anticipate their inheritance and dip into Mom and Dad’s money early.

Recommended Fiduciaries

For medical decisions you need someone who can make a decision, isn’t intimidated dealing with health care professionals and knows and understands your wishes. That may not be your spouse, as many spouses are in denial as to the seriousness of your illness.
On a Declaration of Guardian I suggest designating the same persons you have designated on your powers of attorney. An agent under a medical power of attorney frequently would be a good guardian of the person and an agent under a statutory durable power of attorney frequently will be a good guardian of an estate.
As for executors and trustees I suggest you consider a professional fiduciary such as a bank trust department. Yes, they charge a fee for their services, but frequently it is money well spent.

Robert Morris is an Elder Law, Estate Planning, Guardianship and Medicaid Attorney at Hammerle Finley Law Firm.