Choosing a Fiduciary

We live in a time when advances in medical care have greatly enhanced the life expectancy of the average American.  As more and more of us live into our eighties and beyond, the likelihood that we will need the assistance of someone to help us with our healthcare and financial decisions increases dramatically.  Too often individuals do not plan in advance how they want their affairs handled in the event they are incapable of managing on their own, and the result may be that a Court ends up appointing a third party fiduciary who is given the legal authority to determine what is in the best interest of the incapacitated individual.  What that means is that, if you fail to plan properly, someone that you do not know may have the power to move you from your home to a nursing home or other facility, spend your entire financial resources on what they deem is in your best interest, and leaving you powerless to determine your own healthcare and your own expenditures.

By definition, a fiduciary is someone who has undertaken to act on behalf of another in a particular matter in circumstances that give rise to a relationship of trust and confidence.  For the past year, the Arizona Republic has run a series of articles detailing abuses of the supposed “trust relationship” between court appointed fiduciaries and the individual they are appointed to represent.  The articles have detailed the “cozy relationship” between attorneys, healthcare providers, private fiduciaries, and facilities that care for the physically and/or mentally incapacitated.  Although in many cases the appointment of a fiduciary is necessary, the appointment of a third party that is not a family member can become an extremely expensive process.  The best way to avoid negative consequences associated with the appointment of a third party fiduciary is to execute the proper legal documents including Business Power of Attorney, Healthcare Power of Attorney, a Will, and in many cases a Trust.  These documents allow you to name the person and alternate that you feel would best manage your financial and healthcare needs.  You can set limitations and dictate parameters to ensure your wishes are carried out.

We have clients coming in almost every week that have an elderly relative who has reached a point where they are incapable of managing their own affairs.  In many instances the relative is not aware that they are “slipping”, i.e., experiencing early signs of dimentia.  If that individual has not executed the recommended documents while they were competent, it may be necessary to file a legal action to have a conservator appointed.  That process can be expensive and time consuming, especially if the family members disagree as to who should be “in charge”.  The key to protect your interests and assets is to make the necessary decisions before you reach a point that someone else has to make those decisions for you.  Just give careful thought as to whom you want to be your fiduciary since you are literally putting your life in his or her hands.

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