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Dealing with a Client’s Incapacity

Darby Jones, JD

Professional Fiduciary and Host of the monthly webcast �Aging Academy, Navigating Decisions sponsored by AARP Florida

www.agingacademy.com

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Introduction – Art vs. Science

vs.

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Black's Law Dictionary defines a “fiduciary” as someone who is required to act in the best interests of another person in all matters related to their relationship. Fiduciaries are expected to act with good faith, loyalty, due care, and disclosure.

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What is a “Fiduciary” and what is “Fiduciary Duty”?

A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.

Does NOT have to be in writing!

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Operate without conflict

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Duty to protect assets

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Duty of confidentiality

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What is a Professional Fiduciary?

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Incapacity – Is a determination necessary?

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Dealing with incapacity

Are there estate planning documents in place?
What if no family? May end up in a Guardianship.
Who to alert? What about confidentiality?
Time to reach out to a Care Manager or Care Giving Company?
Is it really incapacity, or perhaps malnutrition or other issue?
Are there mandatory reporting statutes?
Public Guardian Office?
Elder Exploitation or Abuse Statutes?

www.agingacademy.com

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Estate Planning Documents

Difference between a POA and a Trustee
Difference between POA and Guardian
Difference between a POA and a Health Care Surrogate
Difference between a POA and a Personal Representative (PR)
What is probate?

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“Onboarding” a client

Red Flags to look for in estate planning documents. Prepared by an attorney?
Is there a Trust in place? Why? Who is Trustee?
Establish who their Fiduciaries are (“trusted contacts”) is in case of emergency.
Who is that person? Successors named? Language make sense? “Co-fiduciary”?
Who is the “team”: CPA, Attorney, Financial Advisor, Neighbor?
Clarify the parameters of your job and their job.
Keep good notes and records. Understand the titling of the assets! What is “in” trust?
Voice concerns about any team members.
Careful communication. Do the fiduciaries “get along”?

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What if you are asked to serve?

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Challenges for Daily Money Managers

“Orphaned Adults” “Solo agers”
Rural community, lack of services
Hard to “stay in your lane”
COMMUNICATION and RECORD KEEPING are job #1
Make sure your client and client’s “team” understand your role.
If no team in place, build one!
Respect your client’s lifestyle and choices.
Don’t assume that the POA, HCS, or Trustee know what they are doing!
Don’t assume the family is going to do what they say they will do.
Watch out for random “care givers”….friends, neighbors, family

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Benefits of Working with a Professional Fiduciary

A Professional Fiduciary can make a great “team” member for you and your client.
Beneficial even if not a “professional” fiduciary.
Generally, they have the ultimate liability and responsibility
Able to work together, even at a distance
Familiar with family dynamics, history, and overall plan
May seem like “micro managers” but they are there to support you
Important to cultivate a good relationship

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Power of Attorney (POA) Curriculum

A Practical Guide and Certificate Course for Serving as a Power of Attorney in Florida

Course Description

This two-week course will provide a comprehensive and practical education on the powers and duties of serving as a Power of Attorney in Florida by analyzing and discussing statutory requirements, best practices, case studies, and the power of attorney documents themselves. This course is designed for family members, law students, professional fiduciaries, guardians, attorneys, and CPAs.

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Professional Fiduciary Council of Florida

The Professional Fiduciary Council of Florida was created to identify for the public qualified individuals who are available to serve as fiduciaries (including as court appointed professional guardians) for residents of Florida and who have demonstrated a commitment to a high level of fiduciary service.

Membership is focused on those who serve as Professional Fiduciary, Trustee, Agent under a Power of Attorney, Health Care Surrogate, Professional Guardian, and Personal Representative. Members include professional guardians, certified care managers, trust officers, CPAs, and attorneys who desire to provide fiduciary services.

Affiliate members represent professionals providing related services to fiduciaries such as asset management, healthcare services, tax planning, and more.

The Council sets the qualification standards for initial membership; provides education, training, and reporting requirements for maintaining membership; and develops membership branding to assist the public when selecting individual fiduciaries.

www.professionalfiduciarycouncil.org

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6^th Annual Florida Fiduciary Conference

LIMITED EXHIBITOR & SPONSORSHIPS AVAILABLE

QUESTIONS – info@professionalfiduciary.org

Friday, May 2, 2025

7:30 a.m. – 5:00 p.m.

Feather Sound Country Club

St. Petersburg, Florida

Why should you attend: This unique and important conference delivers timely, practical information and education for those in the fiduciary services industry in Florida, including fiduciary responsibilities, relevant laws, ethics, case law updates, best practices as well as day-to-day issues and practical solutions.

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The Professional Fiduciary Council of Florida is hosting a series of one-hour webinars for our members and the public! Our speakers are some of the most knowledgeable and sought-after speakers in Florida on important topics related to fiduciary responsibilities. Each of these webinars takes place on the last Friday of the month from 9 to 10 a.m. – and you can participate from the comfort of your computer!

CLE, CEU, CTFA education credits available.

www.agingacademy.com