A fiduciary is a person who assumes responsibility for a position of trust.
Fiduciaries may serve by court appointment as guardians, conservators and personal representatives of estates. They also serve by agreement as trustees, representative payees or as agents under powers of attorney. The fiduciary as trustee has the responsibility of carrying out the terms of the trust as set forth in a trust document. A trust 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 because of either incapacity or death. If there is no named successor trustee who can serve, the court has the responsibility of appointing a trustee, usually someone who is nominated by the trust beneficiary(s).
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.
The Fiduciary as Conservator is the person who is legally appointed to manage the Conservatee’s estate and/or person. A Conservatorship 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. AConservatee is a person who is the subject of a conservatorship. A Conservator 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 of the Estate is responsible for the prudent use and protection of the conservatee’s assets. The conservator is responsible for inventorying, marshaling and managing all assets and benefits belonging to the Conservatee. The conservator receives income, pays obligations of the estate, applies for pensions, and organizes data for the preparation of income tax returns and other related duties.
Anyone who believes a person may need help with daily living activities and/or finances can initiate the process to appoint a fiduciary as a conservator. The concerned person may contact a fiduciary of choice to investigate the situation. If the fiduciary identifies sufficient need, he or she will retain an attorney to petition the probate court for appointment as conservator.
The 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 and to recommend a suitable person 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. 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 or her responsibilities. The court requires the posting of a surety bond by the conservator, which is intended to protect the assets of the conservatee’s estate.
The fiduciary as personal representative is an individual appointed by the probate court to administer the estate of a person who has died, referred to as a “decedent.” A personal representative 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 personal representative inventories and safeguards assets, collects income, verifies and pays obligations, identifies and notifies heirs and beneficiaries, and distributes assets.
The fiduciary as representative payee is a person designated by the Social Security Administration or other retirement plans to receive the income and pay the expenses of an incapacitated individual.
The fiduciary as Agent Under 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 provides this guidance. For financial matters, the fiduciary conducts personal and financial business pursuant to the client’s written instructions.
Fiduciaries are licensed by the state of California, through the Professional Fiduciaries Bureau. Private Fiduciaries are governed by state statute. Each California county has Probate Court as part of its Superior Court system. Courts may appoint a licensed fiduciary as a neutral third party to protect vulnerable and incapacitated people from abuse, neglect and exploitation. Licensed members must abide by the Professional Fiduciary Code of Ethics.