"The Power of Attorney Experts"
The Difference between an Attorney-in-Fact, Executor and Trustee with Respect to Decision Making Authority
In addition to being chalked-full with legalese and various complicated documents, part of the estate planning process includes naming people to make legal, financial, health care and business decisions on your behalf during your lifetime, as well as naming individuals to carry out your wishes after you pass away. The names assigned to these various roles are not readily understandable and can be quite confusing. More than simply getting the names right, it is important to know who has authority to make decisions in instances where there is an apparent overlap in power.
Hilsz & Associates endeavors to explain the differences between an Attorney-in-Fact, an Executor, and a Trustee and discuss who has the right to make decisions in three common examples. In additional to educating yourself on how to prepare for the day when you may not have capacity to make decisions on your own or just a specific project, task, assignment or scope of work you would like to appoint an agent to act on your behalf to carry out the fuduciary responibility to perform and complete the activity with the same or greater success of results than if you perform them yourself.
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If you have executed and appointed Hilsz & Associates as your Durable Power of Attorney, then you have signed a document appointing Hilsz & Associates to make legal, financial, health care and business decisions on your behalf. The document is called a Power of Attorney, and our firm will be authorized to make decisions on your behalf as your “Attorney-in-Fact” (otherwise known as an Agent). Once Hilsz & Associates is named as your attorney-in-fact, our firm will act as your fiduciary, with making legal, financial, health care and business decisions using the highest standards of good faith, fair dealing and undivided loyalty in making decisions in your best interests and keeping your goals and wishes in mind at all times.
Once retained Hilsz & Associates will perform Attorney-in-Fact’s power, however, Our firm is limited in two important ways. First, as your Attorney-in-Fact we are only permitted to act on you or your businesses behalf; while you or a principle representing the business is still alive and in the legal capacity to appoint our firm in such a role. Once you pass away or the principle no longer represents the buinsess in an authorized capacity to appont our firm, the Attorney-in-Fact i.e. Hilsz & Associates loses all duly authoized power and authority. Second, an Attorney-in-Fact only has control over those assets owned by the principle and more importantly; not held in a trust, as trust assets are governed by a Trustee.
If you have executed and appointed Hilsz & Associates as your Executor and our firm is named in your Will to shepherd your probate assets through the probate court process and ultimately to your beneficiaries upon your death. Probate assets, to make things even more complicated, are those assets in your name alone, as opposed to being held jointly, in trust, or in an account that utilizes designated beneficiaries. Where Hilsz & Associates acts as your Attorney-in-Fact’s; power stops, and the Executor’s power starts. In other words, Hilsz & Associates acting as your Executor has power only upon your death, over your probate assets only.
If you have executed and appointed Hilsz & Associates as your trustee, then you engaged Hilsz & Associates to manage, invest, and distribute the assets in your trust. Unlike an Attorney-in-Fact, whose powers are limited to the period of time you are alive, or an Executor, whose powers are limited to a period of time after you die, your Trustee can serve both during your lifetime and after your death. A Trustee’s powers, however, are limited to those assets held in the trust. A Trustee has no power over assets outside of the trust. If you desire to have Hilsz & Associates act as your Trustee you should appoint our firm as your Durable Power of Attorney and Trustee to provide a full-service general scope of service rather than a Power of Attorney with limited scope of services.
Attorney-in-Fact v. Successor Trustee- During Your Lifetime
When you become incapacitated, the authority granted to Hilsz & Associates acting as your Attorney-in-Fact will be activated under your Durable Power of Attorney, and the power granted to your successor trustee will be activated in your trust. The scope of their respective decision making authority will depend on the extent to which you have funded your trust. Hilsz & Associates can work with your personal Attorney, Cpa or Financial Advisor to perform the role and duties necessary for you to perform your responsibilities. Hilsz & Associates can act as Your Trustee and have exclusive jurisdiction and control over the assets in your trust, your Attorney-in-Fact has jurisdiction, subject to any limiting terms in the Power of Attorney, over everything else. If you have a trust and have funded it with all of your assets, your Attorney-in-Fact is going to thank you for making his/her life relatively easy.
Executor v. Successor Trustee- After Your Death
Upon your death, your Attorney-in-Fact’s power ceases and your Executor’s power, assuming he or she is appointed by the Probate Court, commences. Your Executor, however, only has power over those assets not in trust, not held jointly, or not in an account with beneficiary designations. Accordingly, the Executor role may be limited. If you have a trust and funded it with most of your assets during your lifetime, your successor Trustee will have comparatively more power than your Executor.
Hilsz & Associates has developed a third party outsourced solution to meet your estate planning, legal, financial, healthcare and business needs.
Hilsz & Associates if retained and duly appointed under a notarized Power of Attorney will contract with you or your business to act as your "Attorney-in-Fact,” “Executor” and “Trustee” are designations for distinct roles in the estate planning process, each with specific powers and limitations.
An easy take-away: Hilsz & Associates can solve your most stressful and least address life concern by providing you with a fully bonded, insured and trusted firm to administer your personal life and business matters in a safe, secure and reliable manner.
Trustees have power of Trust assets both during and after your lifetime; your Attorney-in-Fact has power over your non-trust assets during your lifetime; and your Executor has power over your Probate assets upon your death.
If you have any questions about planning for your future, contact an Estate Planning and Power of Attorney specialist at Hilsz & Associates.
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