Powers of Fiduciaries

The new Estates and Protected Individuals Code (EPIC) expands the powers of personal representatives and trustees. Your will or trust document may limit or expand these powers, but the EPIC statute is the starting point. If you think that the statutory powers are fine the way they are, you can simply incorporate them by reference. You may still want to list them, as guidance to the fiduciaries or third-parties.

Here is a list of the new personal representative powers.

Here is a list of the new trustee powers.

You may want to delegate fewer powers to your agent in your Power of Attorney Regarding Property and Financial Matters, depending upon your agent's skill level, values and temperament. Your decision may also hinge on whether, if you became disabled, it would likely be for a short period, or long period. Another consideration is the complexity of the transactions the agent would be likely to handle, and which third-parties the agent would likely have to deal with.

Here is a list of powers granted to an Agent in a typical Power of Attorney.

The list is somewhat comprehensive, but not very specific. The comprehensive and detailed lists in the statute are also a starting point, from which you might "subtract" powers, or incorporate limiting language. Special circumstances, such as Medicaid eligibility planning, require specialized language not discussed here.

One noted estate planning and probate expert, John E. Bos, has suggested incorporating paragraphs that, alternatively:

• List approved investments, such as "large cap" stocks.
• Require the fiduciary to diversify investments by imposing fixed percentages on certain types.
• Exclude risky or socially-repugnant investments.