Attorney as Trustee

Choosing the right trustee is an important task.  Your trust is an agreement between you and your trustee, the person who will ultimately be in charge of managing your assets and your personal affairs. Your trustee will be responsible for ensuring that the terms of your trust are being fulfilled. Your trustee’s job will typically include handling your finances by paying your bills, making investments and maintaining accurate records of your finances. Selecting an attorney as trustee of your living trust is certainly an option you can consider.

Should my attorney be my trustee?

First, because your attorney is most likely the one who drafted your trust document, he or she is already very familiar with the terms.  Your attorney will also have an understanding of your family and financial situations.  Attorneys have very specialized skills and vast experience when it comes to how trusts are managed.  As such, an attorney can be great choice for someone to provide the fiduciary services you will need.  If there are any aspects of your trust that your attorney needs assistance with, such as managing investments, an expert can always be retained, as necessary.

Are there any ethical considerations?

There are actually no inherent ethical or legal issues preventing an attorney from being the trustee of a client’s trust. Only the normal ethical considerations that all attorneys are required to consider, while serving as a fiduciary to a client, still exist. There are usually certain disclosures that must be made to a client, in order to prevent conflicts of interest from occurring. Your estate planning attorney will know all of the professional and ethical requirements in this area, and should be able to head off any issues before they arise.

Attorneys must always exercise professional judgment

Whenever an attorney assumes the task of creating a trust for a client, it is appropriate for the attorney to inform the client of his or her own availability to serve as trustee, should the client choose. However, the attorney’s availability must be presented as simply another choice the client can consider. An attorney cannot allow his or her own self-interest to interfere with the duty to recommend what is best for the client.  The attorney must also be careful to avoid violating the ethical rules regarding solicitation of clients and entering into a business relationship with a client.  These, and other ethical rules, are set out by the local bar in each state.

Informed consent can help to avoid many ethical issues

Once the attorney provides the client with sufficient information to provide “informed consent,” there should not be any problem with that attorney serving in the capacity of trustee. “Informed consent” means that the attorney has explained to the client all of the possible risks and all available alternatives. Once the client understands this information, and still approves of the proposed course of conduct, there is no issue with the attorney serving as trustee.

If you have questions regarding trustees, or any other estate planning needs, please contact Sexton, Bailey Attorneys, PA online or by calling us at (479) 443-0062.