Categorized | Features, Legal Matters

Choosing The Right Decision Maker For You: A Helpful Primer

family-intergenerational-generational-beach

Choosing the right decision makers, known as “fiduciaries” and “agents,” for you and your estate plan is critical.

By Linda T. Cammuso

We make decisions about our lives every day. For some reason deciding on the “right” person(s) to represent our interests and carry out our wishes when we no longer can seems overwhelming.

Clients often ask about whom, or how, to choose. Choosing the right decision makers, known as “fiduciaries” and “agents,” for you and your estate plan is critical. Do not wait until you are under pressure to do so; rather, take the time to read the following quick primer designed to help you choose who should be on your team.

Personal Representative (Executor)

Previously known as an executor, your personal representative carries out the directions of your will and settles your estate following your death. Offering the will for probate, arranging for the sale of assets and payment of debts, filing your final income tax returns, and distributing property to your beneficiaries according the instructions in the Will are include in their responsibilities. Choices for this role include a family member, friend or professional individual or financial institution, or a combination of these options with co-personal representatives.

Trustee

The trustee manages trust assets for the benefit of the designated beneficiaries named in the trust document. Trustees make investment decisions as well as decisions about how to distribute money (in accordance with the trust instructions).  In most living trust arrangements, you will be the initial trustee during your life, with successors to serve in the event of your disability or death. Since most properly- designed estate plans feature a trust as the dispositive document for beneficiaries, the choice of trustee is a critical one, particularly for trusts that will continue long after your death for younger or special needs beneficiaries. As with the personal representative, family, friends, professionals (a person or entity) or a combination thereof may also be considered appropriate options.

Agent Under Your Durable Power Of Attorney

This individual will make legal and financial decisions on your behalf in the event you become temporarily or permanently unable to do so. This includes injury, disability and aging-related decline.                     In selecting your agent, consider someone who is both available and responsible. It is acceptable to name someone who is not local, as many matters can be handled through phone or electronic communication.

Agent Under Your Health Care Proxy

This individual makes health care decisions when your doctor “invokes” the Health Care Proxy – meaning the doctor determines you are not capable of making sound medical decisions for yourself. This can be and often is a temporary situation. Again, the person in this role need not be local, but they must be available to be consulted if an emergency arises. In selecting your agent consider who would have the capability to handle emotional decisions and honor your wishes. This person need not have special medical training — after all, we all make our own medical decisions every day, most of us without special expertise.

Remember that choosing your decision maker before you are under pressure to do so is critical.  Should you enter an end-stage medical condition without proper legal documents there is no way to be sure who will step in on your behalf or what decisions they will make.  Contact an attorney who specializes in estate planning now. It’s the responsible and considerate thing to do for yourself and for your family.

Linda T. Cammuso is a founding partner of Estate Preservation Law Offices located in Worcester, Massachusetts. She is a skilled estate planning and elder law attorney and has authored many articles on elder care and long term estate planning issues. She has appeared on Money Matters Radio and has been a speaker for various community and professional organizations. 

Leave a Reply