One of the most important decisions clients must make as part of their estate planning is who will act for them when they can no longer act for themselves. The inability to act most often occurs because of death, but, it can also, of course, occur because of an incapacity. Upon death, the choice of fiduciary involves the roles of executor for an estate, trustee for a trust, or guardian for a minor child, while incapacity during life generally would only involve agency to address health care decisions and address financial matters. In both instances, if the client is already serving in a fiduciary role for someone else, it might also involve deciding who should be the client’s successor.

For married couples with responsible adult children, the decision-making is generally the easiest. Usually on the death or incapacity of the first spouse, the surviving spouse would serve in all fiduciary roles. However, as couples age, it often makes sense to have one or more children serve as co-fiduciaries with a parent, not only to partner with and support the surviving parent after the first spouse to die (or become incapacitated) is unavailable, but also due to the reality that as parents age they can become less capable of managing their financial affairs and it can be essential to have a younger person involved in an instrumental role. When both parents can no longer act, some clients put all children in the fiduciary roles and let them divide and conquer, while others are concerned about the challenge of having multiple decision makers effectively coordinate with each other and name fiduciaries to serve in succession. Ever family dynamic and philosophy about the distribution of power and responsibility is a bit different and must be sorted out with the assistance of counsel for these roles to be properly filled.