A fiduciary is a person who occupies a position of such power and confidence with regard to the property or well- being of another person that the law requires him/her to act solely in the best interest of the person whom he/she represents. Fiduciary duties fall into two broad categories: the duty of loyalty and the duty of care. These duties vary with different types of relationships between fiduciaries and those who put their trust in them.
Examples of a Fiduciary
Examples of a fiduciary include (but are not limited to): a trustee of a testamentary trust, a guardian of the estate of a minor, a guardian, committee or conservator of the estate and well being of an incompetent person, an executor of a will, an administrator of the estate of a decedent or an advisor or consultant exercising control over a testamentary or express trust. The laws that govern the duties and obligations of a fiduciary are strict and those in the position of a fiduciary are subject to great scrutiny by interested parties and the Courts. Common areas in which individuals may need legal help regarding Fiduciary Law include: Guardianships, Conservatorships, Trust Disputes, and Estate/Will Disputes.
When is a Fiduciary needed?
There are many scenarios in which a court-supervised guardianship, conservatorship, or both may be appropriate for an incapacitated individual in Georgia. Many adults in Georgia are unprepared for a time when they may lose the ability to make wise health and financial decisions for themselves. Maybe they have not discussed their wishes with family or friends, or have not executed general durable financial powers of attorney or advance health care directives. In Georgia, probate courts have jurisdiction over guardianships and conservatorships.
The court may appoint a guardian for an adult who lacks capacity to “make or communicate significant responsible decisions concerning his or her health or safety. The guardian is authorized to decisions for the ward including where a ward lives, to consent to medical treatment, and to make decisions for the support, care, education, health, and welfare of the ward.
The court may appoint a conservator for a minor or when an adult lacks capacity to “make or communicate significant responsible decisions concerning the management of his or her property.” The conservator is authorized to make financial decisions in order to manage and protect the ward’s property. The court may require the conservator to post bond in an amount equal to the ward’s assets, excluding real property.
Have Additional Questions? Contact Us
It’s a good idea to work with an experienced estate planning attorney so that you understand all your legal options and state requirements. At Brian M. Douglas & Associates, we can guide you through the estate planning process and make sure you know how to handle each step. We can help finalize your estate plan in the least stressful way possible. If you’d like to set up a consultation, please call (770) 796-7951 or use our online contact form. We’re always happy to help.