Demystifying Roles And Responsibilities Of Fiduciaries

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O'Sullivan Estate Lawyers LLP

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At O’Sullivan Estate Lawyers LLP, our years of practical experience with complex domestic, cross-border and multi-jurisdictional matters, combined with a deep understanding of your unique goals and objectives, enable us to provide bespoke plans that achieve exceptional solutions.
When updating your estate plan, it's important to consider who will be the key decision-makers on death and on incapacity. Understanding these roles can help you prepare better for your future...
Canada Family and Matrimonial

When updating your estate plan, it's important to consider who will be the key decision-makers on death and on incapacity. Understanding these roles can help you prepare better for your future and make informed decisions about your property and personal care. This blog highlights the responsibilities of fiduciaries in the estate and incapacity planning context.

Executor

An executor is the person (or people) appointed under a deceased's Will who administers a person's estate on their death.

The following list (which is not exhaustive) highlights the core responsibilities of an executor:

  • Making proper funeral and burial or cremation arrangements;
  • Locating the Will;
  • Locating the beneficiaries;
  • Gathering assets;
  • Settling the liabilities of the estate, including debts, taxes and expenses related to the estate;
  • Applying for probate, where necessary;
  • Filing necessary tax returns and paying any tax owing; and
  • Distributing the assets of the estate to the beneficiaries and establishing any testamentary trusts.

The complexity of the estate will depend on a number of factors, including the nature, situs and value of the assets, debts and liabilities of the deceased, the number of beneficiaries, and managing family dynamics, to name a few. These factors can create challenges that require careful navigation (often with the help of professionals).

Trustee

A trustee is a person who holds title to property on trust for the benefit of other persons or for certain specific purposes. A trustee can be appointed under an inter vivos trust or a testamentary trust. Often for a testamentary trust, a trustee may be appointed as the executor of the estate and then will continue to act as the trustee for ongoing testamentary trusts created under the Will.

The core responsibilities of a trustee generally include the following:

  • Managing and investing trust assets;
  • Distributing income or capital to the beneficiaries in accordance with the terms of the trust;
  • Annual tax compliance; and
  • Communication with the beneficiaries.

A trustee's responsibilities can last for many years, depending on the terms of the trust. For example, if funds are set aside for a minor until they attain age 21.

Attorney for Property

An attorney for property is a substitute decision-maker appointed under a Continuing Power of Attorney for Property or equivalent. An attorney for property can make decisions about your financial affairs, including, for example:

  • Paying your bills;
  • Maintaining or selling your house; and
  • Managing your investments.

An attorney for property acts in the best interest of the individual ensuring their financial well-being. He or she steps into an individual's shoes and, if the Continuing Power of Attorney for Property is a general one and has no conditions or restrictions, can do everything the individual can regarding his or her property and financial affairs other than make a Will.

The term "attorney" in this context does not refer to a lawyer or legal counsel, but to the person appointed as a substitute decision-maker under a Continuing Power of Attorney for Property or equivalent.

Attorney for Personal Care

An attorney for personal care is a substitute decision-maker appointed under a Power of Attorney for Personal Care or equivalent. An attorney for personal care can make decisions about your health and medical care, housing, and other aspects of your personal care such as diet and clothing.

As one client described it, an attorney for personal care is the person who will "feed me apple sauce". An attorney for personal care makes decisions about medical treatment and care plans, which may be on an ongoing basis or in an emergency, and advocates for an individual's wishes and best interests. These can be very emotional decisions.

All these roles operate in different contexts and require a high level of responsibility. It's important to distinguish between and understand each role to ensure you are choosing the people best suited for each job.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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