Are You a Fiduciary?

The term fiduciary is defined as a “person who stands in a special relation of trust, confidence, or responsibility in his obligations to others.”

Used frequently in law, a “fiduciary” could refer to:

• Executors;
• Guardians;
• Trustees; or
• Agents.

The Executor

The executor is responsible for ensuring that the terms of a will are carried out. This individual safeguards the deceased’s property and carefully manages the assets so that there is no accusation of waste. In addition, the executor defends the will if there is a challenge in a will contest.

The Guardian

Named in a will, the guardian has a fiduciary relationship with a minor or disabled individual. The guardian, or guardians, can be assigned to either a person or property.

The Trustee

A living trust or a will—that includes a trust—which becomes effective upon death, will have a nominated trustee who serves in a fiduciary capacity. This individual administers the trust in a manner which best preserves the trust assets for the named beneficiaries. The responsibilities of the trustee can range from limited to broad, depending on the wishes of the trust’s creator.

The Agent

The agent is named under a power of attorney or health care proxy. The agent under a power of attorney carries out the duty spelled out in the power. It is certainly helpful if the power of attorney agent has financial savvy.

The health care agent has to understand the medical treatment wishes of the principal who made the appointment—ideally, this person should be able to handle crisis situations without becoming overly emotional.

In both cases, the agent has a heavy responsibility and needs to have a good sense of the principal’s personality and intentions. Advance discussions with agents are useful so that expectations and responsibilities are clear to all parties.    

Do you have questions about naming fiduciaries in your will? Are you a fiduciary who needs some advice? Please contact us today.

Robert W. Shaw, Esq.
(914) 328-1222
E-mail Bob

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