What is a fiduciary and why is a fiduciary important? If you do not choose a fiduciary, a guardian appointed by a court may end up making financial and medical decisions for you and the intestate statutes of your state will determine who will administer your estate when you have passed. If you’d rather have some control over your life, doing some estate planning now will prevent these scenarios later, according to the article “Fiduciary Agents have power to make decisions you’d prefer to make yourself” from the Pocono Record.
A financial fiduciary is the person you designate under your general durable power of attorney, last will and testament, or trust.
The fiduciary under a power of attorney has the power to make decisions, while you are living, for your financial and legal affairs. The person is named in a legal document called an agent or attorney in fact. This document can be broad, allowing the person to determine how to spend or invest your money, to buy and/or sell your home, etc., or it can permit someone to act on your behalf solely for a specific transaction. You and your estate planning attorney determine what is best.
An agent under a healthcare proxy can make healthcare decisions on your behalf, when you are unable to communicate for yourself because of a severe illness or an injury, or a cognitive condition. It is very important to understand that if you are already incapacitated, you cannot sign documents giving anyone else these powers. They must be prepared before they are needed!
Some people prefer to have one person serve as both their agent for finances and for healthcare. This allows one person who understands your physical and mental needs to make decisions about home care, assisted living or a skilled nursing facility and have access to the resources to pay for these services. This also means that one person is applying for any government benefits to help pay for this care.
There are times when designating two different agents creates conflict, if the two people don’t agree on the appropriate type of care. One may be more concerned with spending down resources, while another may wish you to receive 24/7 care.
If you appointed someone to serve as your fiduciary many years ago, it is so important that your documents be reviewed and updated. Do you still want that same person to make critical decisions on your behalf? Are they still able or willing to serve? If the person you have chosen lives in another state and wants you to be moved to where they live, will that work for you and your family?
If you have not reviewed your estate plan and your power of attorney documents in recent years, it is strongly recommended you do so now. Many families are now grappling with the results of outdated planning, or no planning at all. Having an updated estate plan and all of the related documents provides peace of mind for you and your loved ones.
Reference: Pocono Record (June 1, 2021) “Fiduciary Agents have power to make decisions you’d prefer to make yourself”