When you are planning for your death and incapacity, one of the first questions is who would be your fiduciary? Your fiduciary is one of the key decision-makers in any estate plan, and the potential roles include your successor trustee, personal representative (i.e. your executor), your attorney-in-fact (your power of attorney), and your designation of health care surrogate.
What is a Fiduciary?
A fiduciary is a trusted person or institution that can act for you upon your death or incapacity. A fiduciary is held to the highest standard of trust in the legal world. For estate planning purposes, your fiduciary roles can be separated out in different ways:
- Successor Trustee: While not everyone needs a living trust, your successor successor trustee can manage your financial affairs during your lifetime and also upon your death.
- Personal Representative: Also known as your "executor," your Personal Representative is appointed to handle your probate estate upon your death as part of the Florida probate process.
- Attorney-in-Fact: The person named in your durable power of attorney, this person handles your financial and legal affairs. If you become incapacitated and you have not created a durable power of attorney in advance, you may need a guardianship for someone to manage your legal and financial decisions.
- Health Care Surrogate: You should name a decision-maker if you are unable to handle your medical decisions. In Florida, you nominate this person in a designation of health care surrogate. If you become incapacitated without naming a health care surrogate, your family can become your health care proxy.
Often, the same person can serve in all of these fiduciary roles - your successor trustee, personal representative, attorney-in-fact and your health care surrogate.
Who should act as my Fiduciary?
First, you must trust the person you name in any role. There is no better way to create problems in your estate plan than to name an untrustworthy person. After that, the person you name should be able to act if needed. Someone who lives out of state, for instance, may not be a great choice if you have a trusted local person. Finally, you must trust this person’s ability to run your affairs. The person you name should have the financial and emotional ability to handle difficult situations in being your advocate. We have a list of ways to choose your health care surrogate, for instance.
What if I do not have any children or family?
While most people look to family fiduciaries, this is not possible for everyone for a variety of reasons. If you do not have a trusted family member who is able and willing to assist you, some estate planning attorneys serve as fiduciaries. If your estate planning attorney will not do this for you, he or she may know professional guardians and banks who could help you in the event of your death or incapacity. As an elder law attorney, our law firm serves in this role for some clients.