Have you selected the Right Person as your Fiduciary Under your Power of Attorney?

HNW Elder Law, Estate Administration and Probate, Estate Planning, Will Contest and Probate Litigation

By Fredrick P. Niemann, Esq., a NJ Power of Attorney Lawyer

When creating an estate plan and creating a power of attorney, an important decision you will have is who to name as your fiduciary. By fiduciary, I mean your  power of attorney. A fiduciary is a fancy legal term for the person who will take care of your assets if you are unable to do it yourself, such as an attorney-in-fact under a power of attorney. Your first reaction might be to name one of your children as a fiduciary, but if you want to avoid conflict among your children, this might not be the best option.

When naming a fiduciary, be confident you can trust the individual.  This is why people often name family members as fiduciaries. However problems can arise when a parent with two or more children names one child as a fiduciary. According to Fredrick P. Niemann, an attorney from Freehold, New Jersey, who spoke on the issue of family harmony at a recent estate planning seminar on powers of attorney, a child is often not the best fiduciary for several reasons:

• It is hard for a child to be completely objective.
• Children often disagree over many things.
• Children often don’t communicate with each other well.
• Unresolved lifetime rivalries.

An alternative is to hire a professional power of attorney. A professional fiduciary can be a bank, investment firm with trust administration, a certified public accountant, or a trust company. A professional fiduciary will charge a fee, but the fee is established ahead of time. In addition, because a professional is experienced in managing money and property, your assets are more likely to increase under this person’s or institution’s guidance.

To ensure that your family remains partially involved and has some input, you can include a provision that allows one or more family members to discharge the fiduciary if they feel the professional is not doing a good job. This will allow your family to make sure the fiduciary is performing properly without having the burden of acting as fiduciary.

For further information and advice with a power of attorney, do not hesitate to contact me toll-free at (888) 800-7442, or e-mail me at fniemann@hnlawfirm.com/.  We can meet to discuss your questions and issues.  For further information, please go to http://www.youtube.com/user/NJElderLawCenter#p/search/3/a65_eWdihuU to learn more.

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