A fiduciary is a person or entity entrusted with power to act on behalf of another with that person’s best interests steering the decisions. Many types of positions involve fiduciary duties:
- Guardians
- Executors
- Agents under a Power of Attorney, and
- Trustees.
An individual becomes a fiduciary by entering into an agreement or by being appointed by a court or legal document. A fiduciary should not use assets under his/her control such as those in an estate or trust being administered for personal gain. All decisions made must consider the best interests of the owner and be free from conflict of interest and self-dealing. When the lines are unclear, it is best to seek the advice of a seasoned estate planning attorney for clarification to avoid any legal issues.
If you believe someone serving as a fiduciary has breached these duties you must be able to show:
1. A fiduciary relationship exists or existed at the time of the wrongdoing;
2. That there is a breach of that fiduciary duty such as embezzlement, commingling of assets, self-dealing, improper gifts or a loss resulting from wrongful acts or omissions; and
3. That the breach caused actual damages that can be rectified.
If you suspect a breach, an estate litigation attorney can demand a full accounting. The report must justify each and every expense. If you are serving in a fiduciary capacity and need a sounding board to determine best actions or if you suspect a fiduciary of breaching his/her duties, contact Stouffer Legal at 443-470-3599 for a consultation to determine the best course of action.
