Making the decision to place a loved one in long-term care is a difficult one. There are endless emotions and questions that need to be addressed. To make the process more difficult, family and loved ones often have preconceived notions of what it means to be in a facility. We have all heard a horror story or two of poor care, abuse, or medical malpractice – knowledge that understandably creates hesitancy to allow your loved one to be placed into care. Deciding to place a loved one in a long-term care facility requires thoughtful and logical reasoning.

Making the Initial Decision

Family and friends often struggle with the decision to take away their loved one’s independence. Often, placement also means greater distance from those the resident relies on for companionship and assistance. Family may feel disloyal; loved ones may feel betrayed. Family may feel that they have become incapable of caring for their loved one on their own; loved ones may feel that they are not unwell enough to investigate long-term care options. Some loved ones only need minimal assistance; others may need around-the-clock care.

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.