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January 18, 2019 by Rebecca Esmi

Fiduciary — does this apply to you?

Many of us mistakenly believe the term “fiduciary” only pertains to certain financial advisors, but this misconception could lead to grave legal consequences because the term describes a number of important roles in which an individual (or corporation) has powers and duties pertaining to the property — and even the person — of another.

A definition of “fiduciary” includes those who administer another’s property such as trustees, personal representatives of an estate (executors and administrators), guardians, conservators, partners, agents and attorneys-in-fact, corporate officers, or “any other person, trust or estate” serving in a fiduciary capacity.  See Uniform Fiduciaries Act (N.J.S.A. 3B:14-53(b).   A fiduciary is held to a high legal standard in that he or she must put the interests of the “other” before his or her own.   Breaching these duties subjects a fiduciary to civil and even criminal claims, depending upon the severity of the acts and/or omissions.

A prudent course of action prior to accepting a fiduciary position may be to seek legal counsel, with the watch-word being “prior”.   However, prudence also suggests seeking legal counsel is advisable even after accepting such an appointment, so that you can be sure you are meeting your duties and obligations.

 

Filed Under: Disabilities and Elder Law, Estate Planning and Estate Administration, Uncategorized Tagged With: agent, attorney in fact, conservator, fiduciary, guardian, trustee

April 23, 2012 by Rebecca Esmi

The Attorney in Fact as a Fiduciary

A fiduciary has very big shoes to fill.  A fiduciary must put the principal first.  In other words, the Attorney in fact must put the principal before him- or herself at all times, despite any temptation or self-interest.   The Attorney in fact must while acting as fiduciary ensure that actions undertaken are authorized by the POA.   See N.J.S.A. 46:2B-8.13(a).

An Accounting is a report of financial transactions.  An Attorney in fact is required to provide an Accounting upon demand, pursuant to N.J.S.A. 46:2B-8.13(b).   Thus, each Attorney in fact is required to maintain a record of all the various and sundry transactions undertaken on the principal’s behalf, pursuant to N.J.S.A. 46:2B-8.13(b).   An Attorney in fact would be well-advised to retain the record many years since questions could arise years later.    A whole cast of characters can demand an Accounting; to name several of the most common:   The Principal, guardian of the principal (if the principal is adjudicated incapacitated), personal representative, beneficiaries, and heirs of the principal’s estate.

Filed Under: Disabilities and Elder Law, Estate Planning and Estate Administration, Family Law Tagged With: accounting, attorney in fact, fiduciary, poa, power of attorney, years later

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