In what specific roles do fiduciaries serve?

Fiduciaries serve by court appointment as estate trustees, court-appointed committee(s) or conservatorship(s), guardians, and/or personal representatives of estates. They also serve by agreement as estate trustees and/or agents under powers of attorney. Additionally, they may serve in any capacity of the estate's trust assets, such as property manager, business manager, and/or corporate officer or director.

Who monitors fiduciaries?

Fiduciaries are governed by state or provincial statute. Each county or province has a probate court as part of its (superior) court system. While court-supervised matters have an extra layer of protection, all fiduciary accounts are protected by state or provincial licensing by way of their respective probate code. Additionally, any fiduciary who is a member of any organization is held in accordance with those bylaws and ethics codes.

How do you select a qualified fiduciary?

Fiduciaries must meet the requirements of their state or provincial licensing agencies, which generally require annual review and approval of continuing education units (CEUs), along with the ability to be bonded. CEUs may be acquired by attending affiliated vendor educational conferences and/or meetings but do not require membership of said organizations. While some may advocate for membership of an organization, it is not a requirement any longer to be a member of such whereas prior to licensing it was the only form of protection the consumer had for complaints. A consumer should consider the caseload of a fiduciary -- lots of cases means less consideration to your family dynamics or attention to detail. Educational background and community involvement should be considered -- is the fiduciary experienced with nursing or business (a common difference in fiduciaries). These are just a few examples of what to consider. The bottom line is one should look for a well-rounded skill set and a personality to match what you or your family expect in the long run.

What are the educational requirement to become a fiduciary?

Continuing education is a very important part of maintaining one's license. However, before one can claim licensure, they must qualify by experience or by education. It is important to realize that prior to legislation there were no formal degree requirements. With the creation of the Fiduciaries Bureau that changed to ensure world-knowledge experience to provide for a better service to those being protected.

Now one must hold a baccalaureate as a minimum to consider a new career as a fiduciary. The exceptions are with experience: an associates and three years of experience, or no degree and five years of experience. Note that experience is not one client but three or more unrelated persons.

To promote continued growth and understanding of legislative changes, every fiduciary must complete 15 units of continuing education units (CEUs) per year, with three (3) units of ethics related material.

What does an estate trustee do?

An estate trustee has the responsibility of carrying out the terms of the trust estate as set forth in an estate or trust document. A trust (estate) can be created by the language found in a will or a document created during life. If the former, it is a testamentary trust; if the latter, it is a living trust. The trustee is usually a person named by the creator of the trust in the trust document. In some cases, the trustee cannot carry out his or her duties either because of incapacity or death. If there is no named successor trustee who can serve, the court has the responsibility of appointing a successor estate trustee, usually someone who is nominated by the trust beneficiary(s), or by petition by an independent person.

Estate trustee duties can include funding the trust with appropriate assets, safeguarding assets, investing the trust assets according to the Prudent Investor Rule (as set forth in the Probate Code), reporting to beneficiaries (as set forth in the Probate Code) filing income tax returns for the trust and making distributions in accordance with the trust terms.

What is an executor?

An executor is any individual appointed by the probate court to administer the estate of a person who has died, referred to as a “decedent.” This person will either act as an Executor if named in the will, or as an Administrator if not named in the will, or if there is no will. The executor inventories and safeguards assets, collects income, verifies and pays obligations, identifies and notifies heirs and beneficiaries, and distributes assets.

What is a representative payee?

Any person may be designated by the Social Security Administration or other retirement plans to receive the income and pay the expenses of an incapacitated individual. We do not serve independent of any other designation (e.g. estate trustee, conservator/committee, or power of attorney).

What does a conservator/guardian do?

A conservator / committee is the person who is legally appointed to manage the estate and/or health of the infirmed. A conservatorship / committee is a legal tool to provide management for the financial and/or personal affairs of individuals deemed by the court to be physically or mentally incapacitated. A conservatee or Infirmed Person is a person who is the subject of a conservatorship/committee. A Conservator/Committee of the Person is appointed by the court to assume responsibility for decisions regarding the health and welfare of a person. A person is determined by the court to be incapacitated when he or she lacks sufficient understanding or “capacity” to make or communicate responsible decisions concerning his or her daily living needs. A Conservator/Committee of the Estate is responsible for the prudent use and protection of the "infirm's" assets. The conservator/committee is responsible for inventorying, marshalling and managing all assets and benefits belonging to the infirmed. The conservator/committee receives income, pays obligations of the estate, applies for pensions, and organizes data for the preparation of income tax returns and other related duties.

How is a conservator or committee appointed?

All conservatorships, guardianships and/or committee(s) are appointed by regional courts. The petitioner is usually contacted by a concerned person about a person needing help with daily living activities and/or finances. The petitioner will require an attorney to petition the courts and additional personnel from the courts will be assigned to ensure a conservatorship/committee is warranted.

How is a conservatee or infirmed person protected?

The local probate court often appoints an attorney to represent the alleged incapacitated person. A court investigator is also appointed by the court to determine the need for a conservator / committee and to recommend a suitable person, or approve of the nominated petitioner, to serve in that role. All issues and information are brought before a probate court judge who decides if the person is incapacitated or in need of protection and, accordingly, appoints a conservator/committee. The appointed fiduciary is accountable to the court for his or her work. The fiduciary must report to the court and receive the court's approval in carrying out his responsibilities as specified in Letters of Conservatorship / Committee but may also ask the court for additional information when necessary. A surety bond for the conservator/committee is required, which is intended to protect the assets of the infirm's estate. Note that the bond is paid from the infirm's estate since the protection is for the conserved (infirmed).

What is a power of attorney?

The responsibilities of a fiduciary acting as an Agent under Power of Attorney include the following: For health care, the fiduciary acts as attorney-in-fact to make health-care decisions, including placement, medical, treatment and final burial arrangements. More recently an Advance Health Care Directive (AHCD) provides this guidance. However, one also needs to include a HIPAA agreement for their agent to have access to medical records as some medical professionals will not honor the AHCD alone. For financial matters, the fiduciary conducts personal and financial business pursuant to the client’s written instructions.

When should I (or my parent) appoint you as power of attorney?

Before cognitive issues develop, including dementia or Alzheimer's because Powers of Attorney cannot be signed if a person lacks capacity. If the latter applies, then mom or dad will need to be conserved (conservatorship).

Do You Have a Succession Plan?

No one wants to plan for their demise or incapacity, and fiduciaries are not exempt from unexpected medical or life events. Thus, we have established and documented succession plans to ensure our clients’ needs do not fall through the cracks. You spent the time to find a fiduciary to administer your estate and the last thing you want is to have to go to court to replace him/her in the event of their death or other event. Since we have automated many client processes, a change in client management will be seamless. Adding to that are corporate minutes, where client appointments included corporate language, and our own estate planning to direct the corporate officer and/or trustee to assign matters to fiduciaries who will honor our rates and the instructions you provided.

What do you do to protect your clients' information?

In a day and age when retail giants are having their customers' credit card information hacked and used for nefarious purposes, it's important to protect data aggressively. We maintain our corporate firewall and all backups are encrypted with randomly generated SSL keys when the backup begins. Before online data can be accessed, our administrator must receive a security key from the provider. That way, login to our backups have an extra layer of protection.