Last week, I dispelled the myth that you only need a Will in order to have a proper estate plan. This week, I am focusing on who you give power to in these documents. The person you grant power to under a Will or Power of Attorney is generally known as a fiduciary. As I previously explained a few years ago, a fiduciary is a fancy catch all word for personal representative (which is another way of saying executor, executrix or administrator, administratrix), guardians, agents, and trustees who are all subject to the jurisdiction of the Orphans’ Court in Pennsylvania.
Many times my clients feel a sense of obligation to name their children as their fiduciaries and use birth order as a method of selection. Simply being the first born does not make a person more qualified to handle your finances than anyone else. It is important to consider the nature of the position you are appointing the person to. What kinds of decisions are they going make? What kind of responsibilities are they going to have? Who are they going to have to interact with? How will others respond to them? Then look at the people you are considering for each position. Who will fit best in each position?
Take for example Simon and Helena. They have three children. Eleanor, a doctor who is bad with money, Liam, an accountant, who is suspicious of medical professionals, and Robert, their oldest child who, while fine with money and generally trusting of medical professionals, tends to disappear for months on end and is unable to get along with either of his siblings. Eleanor and Liam, twins, get along well but are not on speaking terms with Robert. Who should Simon and Helena name as their Fiduciaries for the Will, Financial Power of Attorney, and Health Care Power of Attorney?