Agents & Fiduciaries in the Estate Plan
Attorney-in-Fact (Agent under Power of Attorney): The attorney-in-fact under a power of attorney provides lifetime disability management of finances and property. The attorney-in-fact pays your bills and manages your financial affairs if you become disabled (or while you are competent if you are otherwise unable to, or don’t want to, manage your finances). Executing a power of attorney may eliminate the need for a court-appointed conservator in the event of disability.
Health Care Agent: The person nominated agent under your health care directive serves as your agent with the power to speak with doctors and other health care professionals in the event you become unable to participate in your health care decision-making. A properly appointed health care agent may give “informed consent” on your behalf for the administration of treatment or for the withholding or discontinuance of treatment. The health care agent is often called upon to make decisions relating to end-of-life care, but the health care directive may also authorize your agent to determine where you should reside should you require care outside the home. A properly executed health care directive can eliminate the need for a court-appointed guardian in the event of disability.
Trustee: The trustee is the person responsible for managing the property transferred to a trust.
The trustee is required to prudently invest and manage the trust assets and make distributions to the trust beneficiaries in accordance with the instructions set forth in the trust instrument. The trustee has a duty to account to the beneficiaries for all the trust assets and may be removed or sanctioned by a judge if it fails to properly manage the beneficiaries’ inheritances.
Personal Representative: The personal representative is the person appointed by the court to administer the probate estate of a deceased individual. The personal representative is generally charged with paying the decedent’s valid debts, taxes, and expenses of administration and distributing the remaining assets of the probate estate in accordance with the terms of the decedent’s Will. Where a Will creates a trust, the personal representative delivers all the assets of the estate to the trustee at the conclusion of the probate proceeding.
Guardian: The guardian can be the person(s) appointed by the court to take physical custody of minor children and provide for their health and well-being. In many respects, a court-appointed guardian acts as a surrogate parent. A guardian may also be appointed for an adult who is unable to make decisions regarding their proper care and well-being.
Conservator: A conservator is a person or entity appointed by a court to manage the assets of someone under legal disability either by reason of age or disability.
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