estate planning documentsAn effective estate plan names representatives who can step in to help you upon your death or incapacity. These representatives, known as "agents" or "fiduciaries", are named in your durable power of attorney, health care surrogate, living trust and last will and testament documents. Before naming someone to act as your agent, you should consider many variables to avoid problems.

First and foremost, the agent you name should be completely trustworthy. This means they will act only in your best interest at all times. Many estate plans have been greatly disrupted with untrustworthy agents, such as when a child steals their parent's money with a durable power of attorney. It happens frequently, especially here in Florida. If you do not trust your children, name another trusted relative or even your attorney or CPA.

A trustworthy fiduciary also needs to be able to act impartially towards all beneficiaries. Many families have great discord when a relative's estate is distributed. Problems can be created if one child is named as a personal representative or a trustee over another child and it is known the children did not get along. Beneficiaries have the ability to argue over the smallest of details, especially over personal items with little monetary value. This can delay final distribution, add additional costs and create rifts in families that can take years to heal, if ever.

If a family member cannot act impartially, or you know the children do not get along, you may want to name an independent or professional agent. A professional has the ability to remain impartial, will have investment skills and can avoid acrimony among your children.

Your fiduciary must also be able to act when the time comes. The reality is that helping make someone's financial and healthcare decisions can be a great deal of work. If a family member lives out of town, they must be willing to travel and/or take time off work to assist you. Thus, in creating your estate plan, make sure you have talked about your options over with your family. You will also need to name alternates in case your agent cannot serve, for whatever reason.

In summary, naming the correct agent is not always an easy task for various reasons. We are, of course, able to talk with you about all of your options to help you make the best decision possible.

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney