In the day-to-day practice of elder law, attorneys often use terminology that we can forget is not commonly encountered by the general public. It’s important that if you hire an elder law attorney you are familiar and comfortable with the language used. Here are a couple of terms that you may come across, but if you find others and need assistance, always feel free to contact your attorney’s office and ask for clarification.
A fiduciary is someone who has a legal obligation to perform actions in the best interests of someone else. When, for example, you appoint a power of attorney that person becomes a fiduciary and is obligated to perform actions so that your best interests are met. Similarly, the trustee of a trust has a duty to act in the best interests of the trust beneficiaries. This duty only exists in specific situations, and non-fiduciary relationships do not have the same obligations.
Some elderly people are concerned that they cannot create a will, trust, or other elder care device because they have a medical condition that prevents them from writing or speaking. While this is a possibility, only a court has the ability to declare a person legally incapacitated or legally incompetent. Until you lose the ability to make decisions on your own, you are still capable of making your own documents or modifying those you made previously. If you are physically, but not mentally, incapable of making documents, you can direct someone else to make them, and even sign them, on your behalf.
We’ll cover these and many other terms at our next free “Living Trusts” estate planning seminars in October. They’ll be on October 23rd, and 24th, in Vero Beach and Port St. Lucie, Florida. Space is limited, so call our offices for registration details.