You have to plan ahead to stay the “Boss”.
Your person (your Fiduciary), has many duties in regard to how they serve you. Professional Fiduciaries are typically held to a higher standard than a family member or friend because, in California, these professionals are licensed by the Department of Consumer Affairs, Professional Fiduciaries Bureau. There is a well-established Code of Ethics, and many laws governing the work of Fiduciaries. If you feel that your family member can avoid conflicts of interest, and put your needs before their own, you may still want them to read, Ethics for Trustees 2.0 to give them a better sense of what is expected.
With your well drafted estate plan, you remain the boss through your incapacity, and death, as the Trustor of your Trust. Your Fiduciary has a duty to follow the instructions you have put into your estate plan. There are challenges when certain circumstances change, and thereby the care you need changes. Here is an example to help you and your chosen Fiduciary understand some of the control issues to consider.
When Dotty was 80, her husband died. She met with a new attorney and restated her trust, along with updating the rest of her estate plan documents (Will, Durable Power of Attorney, and Advance Health Care Directive). All of her assets were properly titled. She worked with the same CPA for many years, and she did a good job of managing her trust. She made a lot of decisions when she updated her documents including how and when her future Trustee would communicate with “nosy” family members (some, she said, couldn’t wait for her to die so they could get her money). Dotty spent a lot of time detailing medical treatments she would, and would not, accept. It took her about 6 months to complete her update.
When Dotty was 95 years old, she fell in her driveway, and her neighbor called her emergency contact (In the past, Dotty made sure that her Fiduciary’s phone number was easy to find). After an ambulance ride to the hospital to make sure she was ok, the hospital doctor found Dotty to be very confused. The doctor wanted to be sure that Dotty understood the consequences of any procedures or tests they would conduct at the hospital, so he ordered a psychiatric consult for Dotty. The psychiatrist found that Dotty did not have sufficient capacity to understand, and contacted her Agent for Health Care (the same Fiduciary). The Agent asked for letters of incapacity from two doctors because Dotty’s Agent and Trustee had no authority to act without such letters. Both the hospital doctor and the psychiatrist provided the letters.
Dotty had been in the hospital for three days, when she was cleared to go home. The Fiduciary hired a geriatric care manager (GCM) for Dotty, who proceeded to get to know Dotty’s medical history, medications, and symptoms. When she came in to the emergency room, Dotty had no broken bones, but she was malnourished and dehydrated. We learned that she would forget to eat, or drink water. Food shopping alone had become difficult.
Dotty returned home, and caregivers were hired to be with Dotty 24/7. For the first few days, Dotty was surprised every time she saw the caregiver. The Fiduciary and the GCM visited and explained that Dotty could not be safe alone at home, and asked Dotty to be patient with getting used to being cared for. Dotty qualified for hospice care, and the hospice nurse visited every week.
Over the following weeks, Dotty got angry about being “too old to manage my own life”, and “having too many people around” (caregivers were working in shifts, and Dotty would forget names). The Fiduciary had collected Dotty’s paperwork (checkbooks, statements, past tax returns, etc.) from her home and explained that all would be scanned and organized as part of the Fiduciary’s job. Dotty demanded that all of her paperwork be returned to her as soon as possible, as she felt she had lost control. All of the originals were returned to Dotty, who “filed” and re-filed the paperwork, growing more and more confused and agitated.
Dotty called her neighbor to complain that the Fiduciary had invaded her privacy and “stole” her paperwork. The neighbor became alarmed, and even though the Fiduciary explained, and shared documentation, showing that he had proper legal authority, the neighbor contacted Adult Protective Services (APS). The Fiduciary welcomed the APS investigation into the matter. APS reported that the Fiduciary was doing a good job, and Dotty was safe. The neighbor continued to view the Fiduciary with suspicion, believing that Dotty had full capacity, and that the doctors who examined her were wrong.
When Dotty died, the Fiduciary arranged to have the locks on the house changed, and once again retrieved all of the important papers from the home. The neighbor was hostile, which unfortunately sometimes comes with misunderstandings around Fiduciary work. All of the beneficiaries received Notice (see California Probate Code 16061.7), proper accountings and distributions were delivered, and the estate settlement was completed.
I have had clients who warmly accepted assistance, and I have had clients who knew they needed the help, but refused it. It is hard to know in advance what you will need, and how willing you will be to receive it. The most important thing to know about estate planning is that it is the most effective way to get your preferences laid out in a way where you, and your wishes, can be respected. Please share this awareness because too few people plan ahead. Thanks.