In estate planning, it can be very confusing understanding the terminology that is used to describe the important fiduciary roles. Have you heard the term personal representative? How’s that different from a Trustee? And what is the difference between a Guardian and Conservator? Here is a quick review of the labels or terms you should know as you engage in your family’s estate planning future:
- Trustee– The person(s) named in a trust to handle the assets in a trust and to carry out the instructions of the trust. The trustee’s responsibilities will be outlined in the trust document.
- Personal Representative– This person named in your Will to manage your estate after you die. He or she will gather all your assets, pay all legitimate estate bills and distribute the remaining assets according the instructions (terms) you laid out in your Will.
- Executor/Executrix – This was the previous term used for Personal Representative in Massachusetts before a major revision was made to the probate laws in 2012. When Massachusetts adopted portions of the Model Probate Code, the term Executor/Executrix was replaced with Personal Representative.
- Health Care Proxy – This is the person you name in your Massachusetts Health Care Proxy document to step into your shoes to make Health Care decisions for you should you become incapacitated.
- Guardian– A guardian is a person appointed by the court to make Health Care and other mostly non-financial decisions for someone who cannot make these types of decisions because of incapacity, incompetence, or in instances where the protected person is a minor. In most instances, a Guardian is named by the Probate Court if there is not a Health Care Proxy in place.
- Power of Attorney– A legal document used to name someone to take over your financial and non-health care decisions. The person you name becomes your attorney-in-fact.
- Conservator– A conservator is a person appointed by the court to take care of someone’s finances when he or she cannot make these types of decisions because of incapacity or incompetence. The court may also name a conservator to manage the financial affairs of a minor.
We often have clients who name different family members to serve in these critical roles. It is important that the terms are used correctly as they all have very different meanings and responsibilities. Family members often incorrectly assume that if they were named the Personal Representative for your Last Will and Testament then they also have the legal authority to make end of life Health Care decisions. Nothing could be further from the truth. Knowing the role and responsibilities of each estate planning fiduciary is important. Of even greater importance is to make sure you’ve discussed your wishes with your loved ones who you named in these roles. This will help make sure they carry out your wishes and not guess what you would want to be done. (For help starting the conversation, download our eBook “Life Conversations with Your Adult Children – How to talk about your future plans”)
Our Medicaid and Estate Planning Attorneys work with many families to discuss these critical life decisions. If you would to know more about these important roles, call our office at (978) 263-0006 or visit our web site at www.GenerationsLawGroup.com.
