What to Know about your Fiduciary Duty

Posted on

Welcome.

You’ve come to this page because someone who loves you dearly has carefully chosen you to fill very special roles in their lives, their children’s lives, or to help handle their affairs during very specific situations which we will list for you below.  These are important responsibilities reflecting their trust and confidence in you. Please contact your loved ones or our office if you need any additional guidance.

We are always available to take your questions.

We can be reached at support@willsandwellness.com or (720) 266-8190.

Please take a look at the email that was sent to you, including any additional attachments. Then, take a look at the descriptions below that correspond with the various roles you have been chosen to act in.

Note that you may not be called upon to act. You are a potential fiduciary. “Fiduciary” means someone named in an estate plan to serve in a very important role on behalf of someone else. Typically, with married couples, the other spouse will be the first person to act in an emergency. After that, most people choose about two to four additional individuals to be called upon to act as “back-ups.” You also have the ability to decline your role if you are unable or unwilling to act when called upon. This is why we ask our clients to have several people listed for each role, just in case. However, if you are called upon to act, you will now have a good understanding of your duties and responsibilities. And, you’ll have us to help you along the way. Just ask.

There is nothing you need to do now.

However, we invite you to call, email, or write us with any questions about your role in this estate plan or estate planning and administration, in general.  Or for any reason at all!  We’d love to hear from you.

And you can learn more about estate planning by attending to one of our free educational talks. Find the schedule here.

Short-Term Temporary Guardian of Children

Happy family of three having fun outdoor.

Call us if you need help understanding or obtaining guardianship documents at 720-266-8190.

A Short-Term Temporary Guardian of Children, or “first responder,” is responsible for taking immediate and temporary custody of your loved one’s children in the event of their parents’ incapacity or death until their nominated Long-Term Permanent Guardians can take physical custody.

In Colorado, if a police officer came to your loved ones’ home during an emergency and a blood relative could not be immediately found, by statute the officer would have to place the minor children in the care of Child Protective Services until one could be found and arrive. This law can be avoided by using a legal Short-Term Guardianship document which you should have received a copy of by email. If you are called upon, make sure to have this document in hand. This will avoid unnecessary trauma or uncertainty for the children and allow you to expedite the process of locating the children’s long-term guardian, if needed.

Your loved one has chosen you for this role because they are confident you would be able to be immediately available for their children and help them to cope with a potentially emotional and traumatic situation until a permanent guardian is able to step in and take over this responsibility.  We are available to help you carry out this responsibility.

In the event that your loved one is unable to care for their children due to incapacity or death, you should ensure that you have documentation in hand confirming your authority to be with the children before the police arrive.  This documentation was included in the email that was sent to you. Calling the police without first having the proper documentation in hand could result in the children being taken into protective custody.  Having their children taken into protective custody is a situation our clients wish to avoid if at all possible.

Long-Term Guardian of Children

As a Long-Term Guardian of minor children, you would be responsible for caring for and loving the children in the event of your loved one’s death or incapacity.

Long-Term Guardians are responsible for making medical and educational decisions for the children and otherwise providing for their needs as a substitute parent. Your loved ones have been asked to complete letters both to you and to their children in the event of their passing, so the children know how much they are loved and so you know how they would want their children raised. Please refer to their estate planning binder for these useful tools. Please note that completing these letters was optional for the parents. It’s possible they may not have been completed. In any event, having a conversation with your loved ones about this topic is highly recommended.

The children’s Trustee in most circumstances is authorized to directly pay or reimburse a guardian for any expenses related to the care of the children, as well as to provide an allowance to help cover the small everyday expenses that arise with raising children.   You will need to coordinate and communicate with the Trustee as you make parenting decisions what have a financial impact.  Our firm is available to help with this, if necessary. If you are not sure whether or not your loved ones have provided financial resources for their children or if you need help sorting through everything to find out, call us. We can help you.

Temporary Pet Guardian

As a Temporary Pet Guardian, you would provide short-term care for your loved one’s pet such as shelter, food, and a loving home. This may be for only a few hours or could be a few days depending on the circumstances. The goal with Temporary Pet Guardianship is to avoid one’s pet being taken to the pound.

Long-Term Pet Guardian

If you are selected as a Long-Term Pet Guardian, you would become the pet owner upon the disability or passing of your loved one. In some cases, you may receive a cash gift to accompany the pet, recognizing that vet bills, food, and care come with a cost. This may be an outright cash gift or it could be a cash gift held in a “pet trust” to ensure the funds are spent on the pet’s care and provision.

Personal Representative under a Last Will

As a Personal Representative, your responsibility is similar to the Successor Trustee responsibilities below in that you have to gather the assets, ascertain any debts owed by your loved one, pay the valid debts, and distribute the assets pursuant to the terms of the Last Will.  The major difference, however, is that you will need to file the original Will with the probate court in the county in which your loved one resided when he or she passed away. In most cases, your loved one’s original Will is in our office stored in a fireproof safe (otherwise it is in their estate planning binder which we provided to them).

Successor Trustee under a Living Trust

If you are listed as a potential Successor Trustee, your loved one has chosen to distribute their property through a Living Trust to avoid the cost, inconvenience, and delays of probate, as well as to protect the privacy and security of their beneficiaries.  The Successor Trustee is responsible for administering the assets of your loved one’s Living Trust according to the terms laid out in the trust agreement.

As Successor Trustee, you would act as the “guardian” of the beneficiaries’ assets until the beneficiaries reach the age specified by the trust. When acting in that role, you are among the most important people in protecting and ensuring the well-being of the beneficiaries’ assets. It is your job to ensure the trust assets are properly invested and to make decisions about the best uses of the assets on the children’s behalf.

Your loved one has chosen you for this role because they believe you will make the right decisions for their beneficiaries, as they would if they were able.  We are available to help you carry out these duties in the best way possible.

Financial Power of Attorney

As a Financial Power of Attorney or “Agent,” you would make financial decisions for your loved one if they became incapacitated and unable to handle their own financial affairs. If you are called upon for this role, contact our office for the appropriate documentation. If you have questions or concerns, please talk them over with your loved one until you are comfortable with them.

Your loved one has chosen to name you as Financial Agent to avoid having you need to go to the probate court and obtain a judge’s permission before handling their financial affairs. It is also important that people they know and trust make these delicate financial decisions during incapacity.

Note that this document is no longer legally effective if your loved one has passed away (the Personal Representative or Successor Trustee would be the person responsible for acting at this point).

Medical Power of Attorney

As a Medical Power of Attorney or “Healthcare Agent,” you would make medical decisions for your loved one if they became incapacitated and unable to make their own decisions.  If you are called upon for this role, contact our office for the appropriate documentation. If you have questions or concerns, please talk them over with your loved one until you are comfortable with them.

Your loved one has chosen to create a Living Will to avoid lingering on life support if they are terminally ill and irreversibly injured.  It is also important that someone they know and trust make these delicate decisions, rather than be subject to hospital policies or someone’s best guess about what medical interventions they would desire. Your loved one may have filled out additional information on their thoughts regarding specific medical treatments. Refer to their estate planning binder for this additional information. This is an optional exercise and may not have been completed by your loved one. In either case, having a conversation with your loved one is recommended so you are all on the same page.

Note that this document is no longer legally effective if your loved one has passed away.

In Case of Emergency, Incapacity, or Death

If you should become aware that your loved one has become incapacitated or has died, please contact our office as we have retained copies of their important documents and originals of their Last Will & Testament and Long-Term Guardianship Nomination.  We will be able to provide you with much needed guidance during a very difficult time.

There is nothing you need to do now.

However, we invite you to call, email, or write us with any questions about your role in this estate plan or estate planning and administration, in general.  Or for any reason at all!  We’d love to hear from you.

Warmly,

The Wills & Wellness Family

W&W Attorneys April 2015