Separation of Powers when Planning for Minor Children

A very common objective in creating an estate plan is to make sure minor children are taken care of if something happened to their parents. Guardians can be appointed in a Will which would clarify who would take care of the children. A Trust works separate from the Will and generally controls the majority of the assets. A Trust designates agents (called a successor trustee) to act for the Trust after the creator of the Trust is unavailable to serve that role. The successor trustee of the Trust has a legal duty to use Trust assets for the benefit of the trust creator’s children (assuming that is what the creator’s wishes are). Thought should be given into who should fill these roles. Sometimes it is common to name the same person to act as both successor trustees over the Trust and guardian of minor children. This is perfectly fine. However, if the same person is acting as both guardian and successor trustee, it is important to have a very high level of trust with that person because they oversee both needs of the children and have access to a fund of money to care for the children.  That said, if the guardian decided to use Trust assets to provide a car to drive the children to school, he or she could do that. Also, since it is the same person, he or she could you their discretion when selecting a vehicle. What if this vehicle were a Mercedes Benz? Would that be ok?

If there is a concern that a person could abuse their discretion as a result of serving in both roles, it is good to separate the roles of guardian and successor trustee. That way the guardian would actually need to justify to a separate person who serves as successor trustee why they need certain funds. The successor trustee could then use discretion to evaluate whether or not a disbursement is actually in the best interest of the child.

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