What Are The Different Types Of Fiduciaries In Florida?
A fiduciary is someone authorized to act on behalf of another person in some capacity. When it comes to probate estates, trusts, and guardianships, there are a number of different kinds of fiduciaries who may be responsible for administering someone else’s property. The terminology is often confusing to family members who are inexperienced with the system. With that in mind, here is a basic guide to the more common types of fiduciaries recognized by Florida law.
Agent Under a Power of Attorney
Let’s start with a power of attorney. This is a document whereby one person (the “principal”) names another person (the “agent”) some amount of authority to act on their behalf with respect to property. A power of attorney may be “general” or “limited” in scope. For example, a power of attorney might broadly grant an agent the ability to manage all of the principal’s property and finances. Conversely, it may be limited to managing a single asset or financial transaction. An agent who exceeds their authorized powers can be held legally responsible for their breach of fiduciary duty.
Trustee Under a Trust
The next type of fiduciary to consider is a trustee. In some respects, a trustee performs a similar function to an agent under a power of attorney. A trustee is given certain property by its original owner–known as a grantor or settlor–and instructed to administer that property in accordance with the written instructions contained in the trust. Again, the trustee must confine their activities to the scope of their authorization or risk a lawsuit for breach of fiduciary duty.
So how does a trustee differ from an agent? One difference is that a trustee’s authority continues even after the settlor dies. This is why trusts are commonly used for estate planning; they enable a continuity of formal ownership over an asset without the need for probate. In contrast, an agent’s authority under a power of attorney ends the moment the principal dies.
If a still-living person is legally incapacitated–i.e., they are unable to make decisions for themselves due to some mental or physical infirmity–then a Florida court may create a guardianship. In this scenario, a court-appointed guardian becomes the fiduciary for the incapacitated person, who is known as the ward. A guardianship is typically necessary only in cases where the ward failed to execute valid power of attorney or trust prior to their incapacity.
Personal Representatives of Probate Estates
Like a power of attorney, a guardianship ends with a person’s death. Once a person has passed away, any assets that remained in their sole name belong to their probate estate. A court will then appoint a special fiduciary known as a personal representative–sometimes called an “executor” or “administrator”–to oversee the estate. The personal representative may have previously served the deceased in some other fiduciary capacity, such as guardian or agent, but they still need to secure a separate appointment to administer the probate estate.
Speak with a Florida Breach of Fiduciary Duty Lawyer Today
If you are involved in a potential legal dispute involving allegations of breach of fiduciary duty, it is important to seek out timely advice from a qualified Pompano Beach estate and trust litigation attorney. Contact Mark R. Manceri, P.A., today to schedule a consultation.