Many people have completed a will and named a personal representative for their estate, but there are other times when other people will need to make decisions for you as well. Sometimes, accidents occur and inhibit an individual from making decisions, or there are troubles that leave family members fighting over an elderly parent’s belongings when the parent is unable to speak for themselves. Situations like these often require fiduciaries to protect individuals and their assets, but the world of fiduciaries goes far beyond wills and estates.
A fiduciary can be a trustee, a conservator, a guardian, or just an attorney; a fiduciary is a person who owes a duty to you to act on your behalf. A fiduciary can be appointed by a court to be a guardian, a personal representatives, or a conservator in the context of estates. In all of these positions, the fiduciary owes a duty to perform their job professionally, and they are responsible when something goes wrong. A conservator will be primarily responsible for handling finances, as opposed to a guardian who has broader decision making powers, generally for someone with mental or physical disabilities, or a child under the age of 18. Anyone can be a fiduciary, anyone can move for one to be appointed regarding someone they know, and anyone can appoint a fiduciary over themselves.
A fiduciary can act as a trustee, which is a word used to describe a fiduciary who manages a trust. A trustee is able to protect, manage, and invest the trust’s assets according to the terms of the specific trust and Oregon law. In Oregon, this means “considering the purposes, terms, distribution requirements and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill and caution” (ORS 130.755). They must make the best decisions for the trust, and the beneficiaries of the trust, by considering the state of the economy, the effect of inflation and deflation, tax consequences of investments, if there is special value to the account and more. This individual must act in the best interest of the trust and its beneficiaries.
Anyone can become a fiduciary; it can even be someone of your choosing. Many such positions require a person to meet certain guidelines for certification, depending on the kind of fiduciary. In Oregon, the most simple certification is called a National Certified Guardian (NCG) certification, which requires you be at least 21 years old, be a high school graduate, be able to pass a criminal background check, and prove one year of work that is dedicated to guardianship or equivalent education requirements. Such certifications often have forms and fees that must be filed in order to apply.
It is also possible to appoint someone who is a professional fiduciary: these can be lawyers, accountants, doctors, and some whose sole purpose is to act as professionals in any kind of fiduciary relationship. The Mastanduno Law Group offer these services by acting as trustees to help families and their trusts. Many professional fiduciaries help with other topic areas, and one professional fiduciary may have different guidelines compared to another.
We don’t like to think about a time when we will be unable to make decisions and organize assets for our families. But life can have some surprises in store, and being prepared will ensure less squabbles as you age. Consult Mastanduno Law Group about their professional fiduciary services to carry out your intentions for your estate. For more information, see our next blog post “The Advantages of Naming a Fiduciary”.