Your “helpers” are the individuals who are going to carry out your wishes or act on your behalf if you become incapacitated or pass away. Our estate planning team is always available to discuss the nuances and implications of each of these helper roles and help you decide which you need to fill and with whom. They can also help you complete the necessary legal documents and forms associated with each helper “assignment.” These legal documents/forms will become part of your overall estate plan.
Personal Representative
A “Personal Representative” (also known as an Executor) is the person who is appointed by the Probate Court upon your death to handle any assets going through the Probate Court. The Personal Representative is the person nominated in your Will to take on this role, or if you didn’t have a Will in place, the person who has stepped forward to take on this role and the Probate Court has agreed to it).
The Personal Representative’s job is to determine and obtain access to your assets (also known as your “estate”), make sure your remaining business, expenses and taxes are paid, and then make distributions of your remaining assets to those you’ve named in your Will or, if you didn’t have a Will set up, according to what the state’s intestate laws say.
When you are doing your Will and thinking about who should serve in the role of Personal Representative, consider the following. Think of the Personal Representative’s role as a financial role. Your Personal Representative should be good with finances or someone who will take the initiative, if they are not, to get professional help to guide them so that they make prudent and reasonable decisions. In addition to this, remember that this is a job, and at times, not a pleasant one to have. Consider that it may be too burdensome for the person you’ve named.
Guardian
A Guardian is the person appointed by the Probate Court to be legally responsible for the care and day-to-day needs of a minor child. A Guardian steps into your role of being the parent if you are no longer living or are unable to care for your child.
As with the Personal Representative, the state does have a default preferential order of who would serve as the Guardian of a minor child if the parents were no longer living. That said, it is very important for you to let the Probate Court know who you would prefer in that role if a Guardian is ever needed. You do that by having a Will and nominating in your Will who you want to serve as Guardian.
When thinking about who should serve as a Guardian for your children, think about a helper who has a similar philosophy to you on raising children and/or will honor what you would have done and wanted. For example, if you would want your child to backpack through Europe on school break, don’t pick someone who would be abhorred by that idea and not honor your wishes. You should also think about whether being Guardian would be too much of a burden for that person. Finally, consider the family dynamics that may result if that person is serving as Guardian.
Power of Attorney Agent
A Power of Attorney Agent is the person you name in your “Power of Attorney” document to step into your shoes to handle (have power over) whatever you have authorized them to do in the aforementioned document. When the Power of Attorney Agent has power to act, they then have legal authority to carry out what is authorized in the document without the need of court involvement. A Power of Attorney Agent can only act in their capacity as agent for you.
When picking a Power of Attorney Agent, your analysis of who it should be should mirror how you chose who should serve as your Personal Representative. In a way, they are similar roles – it’s just that the Power of Attorney Agent can only act on your behalf during your life and the Personal Representative can only act when appointed by the Probate Court after your death. Because of this, it’s not uncommon to have the same helper serving in both roles.
Like the Personal Representative, you should name a person as your Power of Attorney Agent who is good with finances or someone who will take the initiative, if they are not, to get professional help to guide them so that they are making prudent and reasonable decisions. In addition to this, remember that this is a job, and at times, not a pleasant one to have. Consider that it may be too burdensome for the person you’ve named and, again, consider how family dynamics will be affected by that person serving in that role.
Health Care Directive Agent
A Health Care Directive Agent is the person you name in your “Health Care Directive document. The Health Care Directive Agent will make medical decisions for you if you are incapacitated and unable to do so yourself.
When picking a Health Care Directive Agent, pick someone who would be comfortable serving in this role. Also, consider whether that person would have similar ideas to you regarding medical care. Again, consider how family dynamics will be affected by choosing that person over another family member.
We recommend sitting down with the person you’ve named as Health Care Directive Agent at some point (while the waters are calm) and letting them know things you would want or not want for medical care, including measures you would or wouldn’t want to be taken to prolong your life. This can be very helpful and remove a layer of stress for that person.
Trustee
A “Trustee” is the person who is responsible for:
- following the instructions you’ve set out in your trust;
- providing for the trust beneficiaries according to those instructions; and
- taking care and being responsible for the trust assets to accomplish those requirements.
A Trustee is a fiduciary role, and as such, the person serving in this role has a legal responsibility to carry out their responsibilities in a reasonable and prudent manner.
If you have a revocable trust, the initial Trustee will likely be you, with a successor Trustee named after you if you should ever become incapacitated or upon death.
For irrevocable trusts, the Trustee is in most cases someone other than you. The Trustee’s role officially begins as soon as the trust is signed and they have accepted the role. There is no delay in the Trustee being able to do their job (unlike with a Personal Representative who needs to wait for court approval).
Just like with the Personal Representative and Power of Attorney Agent, you should think of the Trustee’s role as a financial role. As such, choose a person who is good with finances or someone who will take the initiative, if they are not, to get professional help to guide them. In addition to this, remember that this is a job, and at times, can be a lot of work. Consider that it may be too burdensome for the person you’ve named. Finally, as always, consider how family dynamics will be affected by that person serving in that role.
Importance of Naming Successor Helpers
Talk with the person you have chosen as helper to make sure they would be okay with the role you hope to assign to them. It can be very helpful for that person to know that there will be a backup helper behind them if they can’t or don’t want to serve at the time.
Since you will not know who will be available when the time comes, make sure to name backup helpers for each helper role.
