Meet our writers

 







Money May 2018

Legal Ease

No, Someone Does Not Have to Act as Your Fiduciary, No Matter What You Want

By Jonathan J. David

Acting as a fiduciary is a serious undertaking and a person should not to be named lightly, and that person should also be given the opportunity to determine whether that is a role he or she wants to take on.

Dear Jonathan: Do I need to get someone’s permission before naming them as my agent, patient advocate and trustee under my financial power of attorney, health care power of attorney and trust, respectively? What happens if I name them and they refuse to act? Are they required to act because I have named them?

Jonathan Says: No one is required to act as a fiduciary unless they are willing and able to act in that capacity at the time they need to act. Simply naming them in your documents does not
impose any kind of legal obligation on their part.

And yes, you should always consult with anyone you want to name as a fiduciary to make sure that they are willing to act when the time comes. It doesn’t make sense to name someone blindly with no idea whether they will act for you. Further, acting as a fiduciary is a serious undertaking and a person should not to be named lightly, and that person should also be given the opportunity to determine whether that is a role he or she wants to take on.

The person(s) you wish to name should be given the courtesy of having a conversation with you prior to your naming them in your documents. If you fail to have that conversation and you name someone without his or her consent, and that person later declines to act, you could end up having no one in place to act for you when the time comes.

I recommend that you get the permission of those who you want to act as your primary fiduciary on your financial power of attorney, your health care power of attorney and your trust, as well as your last will and testament, assuming you prepare one. I also recommend that you name, with their permission, one or more backup fiduciaries to act in the event your other named fiduciaries are unable or unwilling to act when the time comes.

Good luck.

 

Dear Jonathan: How difficult is it to amend a power of attorney? I have both  financial and health care power of attorneys that are several years old and the people who I have named to act on my behalf, first and second choice, are deceased.

Jonathan Says: Rather than try to amend your old power of attorneys, you should prepare new financial and health care power of attorneys naming the new people you want to act as your fiduciaries. In doing so, you should engage the services of an attorney well-versed in drafting these types of documents to make sure they are prepared properly on your behalf.

Once you have prepared and executed those power of attorneys, you should advise any financial institution that has a copy of the original financial power of attorney that that power of attorney has been revoked by you. Further, you should provide a copy of your new health care power of attorney to all of your doctors so that they have that power of attorney on file when and if the person you have named as your patient advocate is required to act on your behalf.

You should also provide your patient advocates with copies of your health care power of attorney for their records. I would not, however, provide a copy of your financial power of attorney to your named agent until such time as he or she is required to act on your behalf.

Good luck.

 

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, PC, 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.

Meet Jonathan