the professional fiduciary

The Professional Fiduciary

by

Russell Pottharst

Copyright © 2015-2017 Russell Pottharst USPTO Reg. No. TXu 1-985-045 − All Rights Reserved


1. Who/what is a Fiduciary?

2. What is a Fiduciary Relationship?

3. Who is a Professional Fiduciary?

4. When would someone need a Professional Fiduciary?

5. What are the benefits of using a Professional Fiduciary?

6. How do you select a Professional Fiduciary?

7. How do you find more information about Professional Fiduciary licensing?

8. How do you engage a Professional Fiduciary?

9. Questions?

2 Copyright © 2015-2017 Russell Pottharst USPTO Reg. No. TXu 1-985-045 − All Rights Reserved


1. Who/what is a Fiduciary?

- someone in whom property and/or powers are entrusted for the benefit of another

- can include almost anyone in a position of trust regarding personal or business services to others

- involves a high standard of duty to act in good faith with regard to the interests of the client



2. What is a Fiduciary Relationship?

While some states differ in their role names and definitions,

generally a fiduciary relationship occurs when an individual acts as one of the following roles:

a. Trustee/Trust Administrator g. Conservator of Estate

b. Executor/Estate Admin./Pers. Repr. h. Conservator of Person

c. Representative Payee (S.S. recpts.) i. Guardian of a Minor

d. Daily Money Manager (bill pmts.) j. Case Manager

e. Receiver k. Consultant & Mentor

f. Bankruptcy Administrator l. Opers./Program/Project Mgr.


3. Who is a Professional Fiduciary? a. In California, Probate Code Section 39 defines a fiduciary as a

personal representative, trustee, guardian, conservator, attorney-in-fact under a power of attorney, custodian under the California Uniform Transfer To Minors Act (Part 9 [commencing with Section 3900] of Division 4).

b. Additionally, if a person acts as a fiduciary for two or more individuals at the same time who are not related to the professional fiduciary or to each other; and also if a person acts as a trustee, agent under a durable power of attorney for health care, or agent under a durable power of attorney for finances, for more than three individuals, at the same time, then that person must obtain a Professional Fiduciary license from the California Professional Fiduciaries Bureau.

5




4. When would someone need a Professional Fiduciary? a. When the original trustee or executor doesn’t know what to do and/or

doesn’t realistically have the time or expertise to succeed in the role. b. When there are unusual assets in the estate (e.g., collectibles), and you

need someone who is experienced with these items to dispose properly. c. When you need to ensure fair treatment of all heirs or beneficiaries,

someone other than a family member should be engaged as administrator. d. When someone in the family becomes challenged from an illness or

disability, and there are no other family members who have the training, expertise, time, or willingness to manage that person or provide assistance.

e. When managing financial affairs becomes a burden, and a trustworthy person is needed to manage income and expenses, assets and liabilities.

f. When you have important business matters to be accomplished and you require an experienced, seasoned business manager to plan and supervise the work, and properly control risk to result in a successful conclusion.


5. What are the benefits of using a Professional Fiduciary?

The Professional Fiduciary can be: a. an advocate − someone who is “on the client’s side” − not as a

legal representative, but who can speak and act for a person who is challenged in some way and cannot speak or act for her/himself.

b. a neutral third party − as an unbiased administrator − eliminates conflicts of interest and feuding among family members or business associates, who may not realistically have the training, expertise, or time to properly handle certain types of matters on a normal every-day basis.

c. a defense line − against potential mismanagement − enables a single independent point of responsibility, control and accountability to handle all matters in a seamless, professional manner, and eliminates potential discrimination against some parties as well as unnecessary favoritism toward others.

7




6. How do you select a Professional Fiduciary?

A Professional Fiduciary should be chosen with the following qualifications:

a. Education - college degree at an accredited institution

b. Add’l Training - certification in an area relevant to the related role

c. Experience - performed role successfully for other clients

d. Licensing - proper licenses at the city, county, state, and

federal levels, as appropriate, to permit rendering

the desired professional service



7. How do you find more information about Professional Fiduciary licensing?

See California State’s Professional Fiduciaries Bureau website at http://www.fiduciary.ca.gov/ and click on the “Consumers” tab for helpful resources.

Licensing and oversight by the Professional Fiduciaries Bureau provide a

layer of protection for fiduciary clients and their families and businesses. Licensing ensures that Professional Fiduciaries have met education and experience requirements, and also have passed a competency exam and an FBI criminal background check, as well as they undertake annual CEU training in ethics and other relevant areas.


http://www.fiduciary.ca.gov/

The Professional Fiduciaries Bureau may soon require all licensed fiduciaries to provide the following notice:

NOTIFICATION TO CONSUMERS

Professional Fiduciaries are licensed and regulated

by the Professional Fiduciaries Bureau

Professional Fiduciaries Bureau Telephone: (916) 574-7340

Professional Fiduciaries Bureau Website: www.fiduciary.ca.gov

Also to be required: "The notice shall be signed and dated by the client and retained in the client's records."

10



http://www.fiduciary.ca.gov/


8. How do you engage a Professional Fiduciary?

a. By Court Appointment

This is done by a petition to and approval of a judge in the Probate Section of the Superior Court of California. Fees are set by the Probate Code or as approved by the presiding judge.

b. By Contract

Anyone can engage a Professional Fiduciary by negotiating objectives, fees, terms and conditions, and signing a contract for professional services, which are many times accompanied by a Nondisclosure Agreement (NDA) to ensure privacy.



9. Questions? CONTACT

Russell Pottharst

411 W. 5th Street P.O. Box 13281

Los Angeles, CA 90013 (213) 221-5038

[email protected]


the professional fiduciary

Business