Like so many concepts in the law, the word “fiduciary” has Latin roots; it means trust. This is particularly appropriate, as the word trust is thought of as the confidence and reliability required in a person of great importance – as well as a legal vehicle to develop such relationships.

The list of potential fiduciary positions is rather long, demonstrating that it is quite easy to become a fiduciary for another person. While a fiduciary can be a stock brokerage firm handling the investments of a retiree or a real estate agent selling a home for a client, in the estate planning and elder law context, a fiduciary very commonly comes in the form of a trustee of a trust, an agent in a power of attorney, or as an executor of a will.

When Does One Become a Fiduciary?

Decanting is the act of pouring assets from one trust into a different trust with more desirable terms. While a revocable trust can be amended freely while the grantor is alive, an irrevocable trust has more restrictions. To be sure, a trust protector would be the first line of defense when a problem arises. If the original irrevocable trust allows for a trust protector, she may be able to alter that trust to bring about the desired result. If a trust protector is not provided for in the original trust, or if she cannot fix the problem, decanting might be a good solution.

All families have their challenges. Siblings fight. Children demand fairness. Parents lay down the law. When the family dynamic enters the legal realm, in addition to the law, attorneys must arm themselves with a bit of psychology know-how, too.

Elder law attorneys rely on a heightened degree of human interaction. Focus on the human element is more heavily emphasized in this unique area of law because the tasks within it involve family dynamics, familial history, finances, healthcare, and strong emotions. It is all too common for confusion and disputes to arise, from asset disagreements to caregiver misunderstandings. The very act of creating a plan for one’s life and death may create conflict among family members, partners, and friends of the planner.

Attorneys focusing on areas of elder law can lessen, and even prevent, many potential complications through careful navigation of the particular family’s distinctive complexities. The key to mitigating future challenges and familial fighting can be summed up into one word: COMMUNICATION. Most conflicts arise when parties are not on the same page.

Causes of Family Conflict