Choosing Fiduciaries Part II - Guardians and Trustees

A fiduciary is a person or an institution that you give the power to act on your behalf or administer your affairs according to the terms you lay out in your estate planning documents.  They have a "fiduciary duty" to act in good faith according to your wishes and the terms you set out defining the relationship.  In this section, we discuss choosing a Guardian and a Trustee.

Guardian.  A Guardian is someone you typically name in your Will or similar estate planning document who will have the legal authority to care for your child if you pass away while the child is still a minor.   If you die without naming a guardian for your children, then the Court will make the decision for you.  However, you should know who is best suited to care for your children, so it is important to have appropriate estate planning in place.

So, who should you name as Guardian?  There are many important factors to consider.  To start, you'll want to name someone that you know is willing to serve - and also someone who is able to serve, i.e. can they physically/mentally handle having a child or another child in their household?  The person should have a good relationship and be familiar with your children.  The person should share your values with respect to how to raise a child.  They should be responsible with money as well because people most commonly name the same person to be both the Guardian and also the custodian/trustee of the child's inheritance.  Think about the geographical implications as well.  All of these factors and others should lead you to the most appropriate choice for the job.

Trustee.  A Trustee is a person or corporation that you name to manage property in a trust that you create as part of your estate plan.  A Trust is a legal arrangement where one person/corporation holds your property for the benefit of a third party, i.e. often your children.  The Trustee manages the property according to the instructions that you provide in the trust document.

Who should you name as Trustee?  Your Trustee should be someone that you can rely on to carry out the terms of the trust according to your instructions.  The Trustee should clearly be responsible with finances and comfortable with paperwork.  When trusts involve distributions to children, the Trustee often has substantial discretion on the distribution amounts and purposes.  Therefore, it is important to choose a Trustee you can count on to exercise that discretion in an appropriate manner and won't squander the funds - someone with good judgment.  Another factor to consider is the size of the trust.  If the value of the trust is quite large, it may be appropriate to appoint a corporate trust department to oversee the trust, or at the very least, a person with considerable relevant financial experience.