Courts are sometimes faced with a difficult decision when two different parties each want to be appointed as the guardian and/or conservator for a vulnerable person. This can also arise in an estate, where two different parties are vying to be named trustee of a trust or personal representative of an estate. It may not be clear to the court which party would be the better one to serve, so the court may consider appointing neither of them, instead opting for a neutral or professional fiduciary.
A neutral fiduciary has some advantages; it can reduce the friction between family members by avoiding the perception that the court is choosing one party over another. There are numerous professional fiduciary firms which are available to serve in the event that a family is divided between two parties, or sometimes when there is no one in the family who qualifies to act as a fiduciary. A professional fiduciary is one who is a professional person or entity that regularly serves in the capacity of a guardian, conservator, trustee or personal representative. It is not uncommon, for example for a settlor to name a bank to serve as trustee.
Another example of a situation in which a court might appoint a neutral or professional fiduciary is that of a conservator or personal representative who could not be bonded. A bond is required in almost all conservatorships and estates (unless the will specifically waives the bond requirement) and may be required in a trust administration. There may be an obvious choice to serve—a spouse or an adult child—whose credit history is such that a bond company might not be willing to issue a bond. A professional fiduciary will have the credit history required by the bond company, so that is not an issue.
Finally, courts will sometimes appoint a professional fiduciary if the issues in the case are so complex that only a professional would have the experience and training to manage the conservatorship, trust or estate assets adequately. Most of us do not have such complicated estates that a professional is necessary, but occasionally the court will have a situation in which there are numerous accounts, federal regulations, and so on, that justify the appointment of a professional.
Generally courts will look to a family member to administer an estate or serve as guardian or conservator, but for those situations in which there are extreme conflicts or complicated issues, a professional fiduciary may be the best option to assure the court that the guardian, conservator, trustee or personal representative is competent to handle the job.
An experienced Guardianship Attorney can guide you and your family through this process. Contact the guardianship attorneys with the Law Offices of Nay & Friedenberg in Portland, Oregon at (503) 245-0894 to set an appointment.