Elder law attorneys urge the public to create a legal plan for the future, but it is difficult for individuals without immediate family to decide who to appoint as their health care surrogate or agent under a power of attorney. All too often, these individuals avoid completing the appropriate documents, leaving them in an extremely vulnerable position should they lose the capacity to manage their medical and financial affairs.
Ironically, a senior with plenty of family support may find themselves in a similar predicament. There might be loved ones who could take over if needed, but they may live far away, lack the appropriate skills, or bring a potential for conflict with siblings or other relatives. Family may be willing but unable or ill-prepared to fill this important role.
In either case, what is a person to do in order to take charge of their legal, financial and medical future? A professional fiduciary may be the solution.
What Is a Fiduciary?
A fiduciary is a person who is named in a private legal agreement or by a court to assume responsibility for the affairs of another person (usually called the principal, ward or beneficiary) while they are still alive and/or after they have passed away. A fiduciary can be an individual or a corporate entity like a bank’s trust department.
The term for this designation stems from the fiduciary duty that is owed to the principal, ward or beneficiary—a legal and/or ethical obligation to act in their best interests. There are a number of different kinds of fiduciary relationships, and each comes with unique duties and involves a certain amount of restriction for the person who requires representation. A representative payee for a loved one’s Social Security benefits and an executor for a decedent’s estate are both examples of fiduciary roles.
Most people wish to select the person who will be entrusted with managing their affairs; that is why durable power of attorney documents for finances and health care exist. They allow individuals to appoint someone they know and trust (an agent) to make decisions on their behalf so that a stranger does not assume this very personal responsibility.
However, in cases where a senior does not have a person to appoint, a professional may be the best bet. Individuals who serve as professional fiduciaries tend to be trust officers, certified public accountants (CPAs), certified care managers or attorneys. When selecting a professional fiduciary, be certain they have appropriate certifications for and experience with the types of services that are required.
Regardless of whether a fiduciary is a spouse, a trusted friend, an adult child or a professional, this individual must act within the legal authority granted to them and in the best interests of the person they are representing. Breach of fiduciary duties is taken extremely seriously. While it may seem unnerving to appoint someone you do not know to handle such important decisions, professionals in this line of work must follow a strict code of ethics and are typically regulated by individual states.
One of the biggest benefits of hiring a professional fiduciary is the ability to avoid family conflict. For example, parents often wish to name a child as their agent, but in cases where there are multiple children, squabbles over decisions and who holds the power to make them can get ugly. Appointing multiple individuals to serve as co-agents can make things even worse. A professional fiduciary lends objective legal and financial expertise while ensuring that a person’s affairs are taken care of without added drama.
How Are Professional Fiduciaries Appointed?
An elder who would like to appoint an impartial individual to manage their health care and/or finances can name a professional fiduciary in their durable power of attorney (POA) documents or other legal documents. In instances where a senior failed to name any agent to act on their behalf prior to becoming incapacitated, or in cases where an already appointed agent is misusing or abusing their position, guardianship (also known as conservatorship) proceedings will ensue. This lengthy and expensive process can result in the court appointing a professional fiduciary called a guardian (or conservator) who will handle the senior’s affairs.
How Much Does a Professional Fiduciary Charge?
Much like an attorney or financial adviser, professional fiduciary costs vary widely depending on the complexity of an individual’s case and the types of services needed. If a senior is still competent and capable of naming a professional in their POA documents, then both parties should meet and a fee agreement will be provided describing all charges for the specific services needed.
No money changes hands until the fiduciary actually begins providing services, which may be many years from the time the agreement is signed. When a professional is appointed through guardianship or conservatorship proceedings, fees (usually hourly) are presented to and approved by the court. In both cases, fees are paid out of the senior’s estate.
The best way to ensure that your affairs will be handled the way you prefer is to work with an attorney to draft appropriate documents and keep them up to date. In the event you find a loved one in a situation where this hasn’t been done or where those named in the documents are unable or unwilling to serve, it is wise to consider hiring a professional to fill this critical role.