Estate, trust, tax planning, Boston Attorneys, Broude & Hochberg LLP

The Executor is an individual or institution designated in a Will with the task of carrying out the terms of the Will. The Executor's job will usually last for one to two years, however, in special cases an Executor may continue to serve for several years. The Executor must file the Will with the local probate court in order to be appointed to serve. Once appointed, the Executor is responsible for (i) collecting and managing the assets of the decedent, (ii) paying all of the decedent's outstanding debts, funeral expenses and expenses of administration, (iii) filing final income tax returns for the decedent (as well as any necessary estate tax returns) and paying the income and estate taxes out of the decedent's assets, and (iv) distributing the remainder of the decedent's assets in accordance with the directions in the Will. The Executor may also need to file periodic reports with the probate court and prepare an accounting of their actions as required by the laws of the decedent's state of residence.

The Trustee is the individual or institution designated in a trust document with the task of managing the Trust assets for the benefit of the beneficiaries. The Trustee's job can last for just a few years or many years. In cases where the Trust may continue for many years, a well drafted Trust will have a mechanism that provides for the appointment of successor Trustees. The duties and responsibilities of the Trustee are defined in the trust document and governed by state law. Generally, the Trustee is charged with (i) supervising the investment of assets held in the Trust, (ii) making distributions to or for the benefit of the beneficiaries to meet their needs according to the standards set forth in the Trust, (iii) filing Trust income tax returns, and (iv) doing all other tasks required by the Trust document within the law. The latter may be very time consuming as it could include such tasks as managing real estate or operating a business or preparing either one for sale.

The Attorney-in-Fact, also sometimes referred to as the Agent, is the individual or institution designated in a Durable Power of Attorney to assist you in the management of your financial and administrative affairs in the event of your absence or incapacity. The Agent is under a “fiduciary duty” to observe the standards observed by a prudent person dealing with the property of another. Depending upon the powers granted in the Durable Power of Attorney, the Agent can be responsible for (i) paying your bills, (ii) managing your real estate, (iii) managing your investments accounts and retirement accounts, and (iv) taking any other steps necessary to carry out your financial and administrative affairs. The Agent is not entitled to use your money or property for his or her own benefit unless the Durable Power of Attorney specifically states as much.

The Health Care Agent, sometimes simply referred to as the Agent, is an individual you know and trust designated in a Health Care Proxy to make health care decisions for you when you are unable to make or communicate those decisions yourself. The Agent cannot act for you until your doctor determines, in writing, that you lack the ability to make your own health care decisions. Your doctor should communicate this to you if there is any sign that you understand it.

If you give your Agent full authority to act for you, he or she can consent to or refuse any medical treatment, including treatment that could keep you alive. Your Agent should fully consider all the options regarding diagnosis, prognosis, and treatment of your illness or condition. Your Agent also has the legal right to get any information, including confidential medical information, necessary to make informed decisions for you. It is very important that you talk with your Agent so that he or she knows what is important to you.

You may specifically state your wishes regarding extraordinary measures in the proxy document and your Agent will make health care decisions for you according to those wishes. If you have not specifically stated your wishes in particular situations, your Agent will decide based on what he or she thinks would be in your best interests, including your religious or moral beliefs.

After your doctor has determined that you lack the ability to make health care decisions, if you still object to any decisions made by your Agent, your own decisions will be honored unless a Court determines that you lack capacity to make your own health care decisions. Your Agent's decisions will have the same authority as you would, if you were able, and will be honored over those of any other person, except for any limitation you yourself made, or except for a Court order specifically overriding your Health Care Proxy.

The Guardian is an individual who is legally appointed to administer the financial and personal affairs of an individual deemed by the Court to be unable to care for him or herself (the “Ward”).  A Guardian is appointed for an adult whose judgment is impaired by virtue of mental incompetence, mental illness, mental retardation or disability. A judge must determine that the impaired judgment or lack of capacity of the adult poses a threat to his or her welfare. A Guardian may also be appointed for a minor if a judge finds that it is necessary or convenient. The Guardian manages the assets of the Ward's estate and makes decisions regarding his or her personal needs and medical treatment.  If the guardianship decree calls for it, the Guardian may also make decisions about the administration of antipsychotic medication and/or the commitment of the Ward to a mental health facility.   

The Conservator is similar to the Guardian in both powers and duties; however a Conservator is appointed by a judge to manage only the property of the Ward, not his or her personal affairs.  Often the appointment of a Conservator is sought when an individual needs assistance handling his or her financial affairs, but is otherwise competent to make his or her own medical and health care decisions.

Copyright © 2005-2013 Broude & Hochberg, LLP. All rights Reserved. Click for Site Terms of Use.
The above is considered “advertising” under Massachusetts Supreme Judicial Court Rule 3:07. This site designed & hosted by the Social Law Library, Boston, Massachusetts.