Yearly, on March 17th, many commemorate St. Patrick and celebrate the Irish nation. The widely recognized St. Patrick’s Day finds its origins in the Republic of Ireland, Northern Ireland, Newfoundland and Labrador. St. Patrick is fondly remembered for converting Ireland from polytheism to Christianity. To celebrate, hundreds are seen wearing the familiar green color which traditionally symbolizes St. Patrick’s use of the shamrock. Here in the United States, many of us associate green with money, which brings up the question…Who can you really you trust to handle your money?
Patrick was actually born in Britain, then kidnapped and taken to Ireland as a slave. He was later able to escape and return to Britain where he became a priest. The rest of his life was dedicated to serving as a Christian missionary in Ireland. Although Saint Patrick is probably the best-known saint around the world, he was accused of financially mishandling gifts at one point in his life. He discusses this trauma in his famous Declaration or Confession. He went to trial but was found innocent.
Having the responsibility of handling someone else’s money can be thought of as a privilege…that comes with a lot of responsibility. Someone in this position is referred to as a “fiduciary” because that individual is entrusted with power or property for the benefit of another person. In our law firm, we work with fiduciaries every day, including Personal Representatives (called Executors in other states), trustees, conservators, attorneys in fact, health care agents, guardians, accountants and financial advisors. As attorneys we act as fiduciaries when we handle our clients’ money in our trust account and when clients confer their confidential information to us.
All of us need to give some thought to the question of who we can trust to handle our finances, our real estate, and our legal affairs in case we become injured, ill, or pass away. Below are the ABC’s of “fiduciaries” in Florida who will eventually become part of your master plan, as in, your estate plan.
- Personal representative is a term that comes up when someone passes away (with or without a Will) and their estate (all the assets they own at the time of death) needs to go through a probate court in order for their family to receive their inheritance. The personal representative can be a close friend, family member, or a financial institution. The Judge needs to legally appoint them in what is called “Letters of Administration” so they can officially be in charge of distributing the decedent’s assets. In Florida, the term “personal representative” is used instead of “executor, executrix, administrator and administratrix.”
- A trustee is a person who takes responsibility for managing money or assets that have been set aside in a trust for the benefit of someone else (the beneficiaries). As a trustee, you must use the money or assets in the trust only for the beneficiary’s benefit as specifically listed in the trust. For example, husband and wife create a Revocable Trust (aka Living Trust) together. The beneficiaries of this trust are their children. Husband and wife are the co-trustees during their lifetime, and after both have passed away, a new Trustee (whoever is indicated in the Trust as successor Trustee) takes over management of the assets located in that trust.
- A legal guardian is a person who gets appointed by a Judge and now has the legal authority (and the fiduciary duty) to care for the person and their property. Guardians are typically used in three situations: guardianship for an incapacitated senior (due to old age or illness), guardianship for a minor child, and guardianship for adults with special needs. Guardians can be named in legal documents such as a Last Will & Testament or a Declaration of Pre-Need Guardian, or through a highly supervised court process called Guardianship.
- An attorney-in-fact (also called an agent) is a person who has the legal authority to carry on financial and legal matters on behalf of another person, if that person becomes injured or incapacitated. In order to become someone’s attorney-in-fact, that person (the principal) must sign a durable power of attorney document that specifically designates who their attorney-in-fact is. This duty lasts for the lifetime of the original creator of the power of attorney and terminates upon their death.
Selecting who you trust to act as your fiduciary is one of the most important decisions you will ever make. It affects your finances, your children, and the rest of your immediate family. Select a person who is responsible, trust-worthy, good with finances, and well versed in paperwork. Once selected, the fiduciary has a legal duty to communicate with interested parties and keep records as if they were to give an account to a court.
If you are faced with a fiduciary who is not behaving ethically, or you are having doubts about a fiduciary you have already appointed, consult our estate planning attorneys to have that person removed. Otherwise, we can help you get started on naming your fiduciaries in the right legal documents. Contact OC Estate & Elder Law at (954) 251-0332 or info@ocestatelawyers.com to get started on your free consultation. Our attorneys are fluent in English, Spanish, and Russian.
