I was helping out a client who was a beneficiary of a trust along with his brother and sister. The trust owned multiple pieces of rental property, but nothing else. The trust was set up by my client's grandfather, and my client's uncle was named as the trustee. The grandfather had already passed away and the uncle had been managing the trust assets as the trustee for quite some time. Unbeknownst to my client, the uncle had been living in one of the rental properties rent free for years, and had mortgaged the other properties to where there was no income being earned in the trust at all. To someone who doesn't know any better, this may not be all that big of a deal. However, there were some very serious violations and harm occurring against the beneficiaries.
Whether a person is listed as the trustee on a trust or given power of attorney on someone's behalf, that person is being provided what is called a fiduciary responsibility. They have access to sensitive financial information, and are responsible for properly handling such information. Unfortunately, this responsibility does give the ability for misuse, abuse or even stealing. If abuse were to happen, the fiduciary would be held accountable by the beneficiaries. But what if the beneficiaries didn't know any better until it was too late?
Often times, trusts are set up to where the beneficiaries' rights to receive their share is not until a pre-determined date in the future (age, college degree, etc.). In fact, if you read my October blog entitled "Your Child’s Inheritance – Protecting Them from Themselves", encouragement of using this tactic is discussed in greater detail. While the beneficiary may be able to receive financial assistance with some living expenses, they don't have full access to the actual property in the trust. This also means the beneficiary is not necessarily keeping an eye on, or know to keep an eye on, the trustee's activities and how the trustee is investing the property.
Without getting into the technicalities of what the uncle was doing wrong, basically the uncle is held to the Prudent Investor Standard. He is not allowed to use the trust resources for his own personal gain, and he's also supposed to handle the investments to the benefit of the beneficiaries.
When people contact us to get their estate planning done, often times they'll be able to round up what property, bank accounts and investments they have, but overlook what appear to be simple decisions like, "who is going to handle my money if I can't?". When in reality, this is just as important. So how do you pick who this person should be?
When you are dealing with the financial power of attorney, I strongly recommend choosing someone who you not only trust, but who is local. If you name someone that is living several hours (or a flight) away, they are not really in a good position to handle the day to day financial affairs you'd usually be dealing with yourself. It's possible, but certainly difficult. You may have seen the television commercial recently about how a stranger gives a random person on the street a briefcase full of money and tells them to hold it until they get back. This could be a good test question for you. If you give the person you want to name a bag of money and ask them to pay your bills while you're gone do you think they'd be willing to do this, AND not abuse the power you've given them?