When it comes to the various roles involved in estate planning, it can be difficult to understand who is who and what is what. This post seeks to better identify and distinguish the various roles regarding minor children. 

The first important thing to know about all of these roles is that they are considered fiduciary positions, meaning that all they do must benefit the individual they are caring for. This is the standard, and if they do not meet it they open themselves to civil liability and in many instances criminal liability as well. 

Trustee: A Trustee is an individual in charge of dispersing funds left in a trust. A trustee begins fulfilling their role when their designator dies and leaves money in a trust earmarked for specific beneficiaries. A beneficiary can also be the trustee of their own funds depending on their age and the constraints in the trust. Trusts and Trustees are private, think of them like LLCs or a closely held corporation. The contract that dictates their work is the trust itself. The court only gets involved if there is some dispute or change required that the trust has not already accounted for. They are essentially a conservator for the money left in a trust, but have much more flexibility and autonomy than a conservator would. 

Guardian: A guardian is the individual that takes care of the day to day needs of a child. If a parent has indicated a guardian, the court’s role is to rubber stamp that decision (or hear evidence as to why that individual would not be fit to serve). The guardian makes annual reports to the court regarding the welfare of the child/children. A guardian registers children for school, takes them to doctor’s appointments, and ensures that they are developing healthily. If the parent(s) are deceased, this is generally a permanent role. In other instances, such as long term incapacitation or absence (military service, deportation, rehab, etc.), a temporary guardian can be appointed. This guardianship remains in place until the child reaches 18 years of age.  

Conservator: A conservator is an individual that takes care of the money for a child, their role is to ensure that the money for the child is held in safe accounts and investments. This role requires a court appointment and filing of reports at least annually. In some situations, the court will oversee every distribution and investment, requiring that the conservator receive permission from the court for every action taken. Other times, the court will allow the conservator more liberty than this. It depends on the preferences of the judge and the financial risk the judge perceives. Once the child becomes an adult, they are entitled to full control of these funds. In most cases this is when the child is 21 years old, but sometimes it’s age 18. If funds are left in a Trust, the Trustee has power to control those funds and they are distributed based on the terms of the trust, even for a minor child. If in stead, funds are left in the name of the child, i.e. not to a trust but just to Jane Doe herself, then a conservator would be required to manage the funds left to Jane, until Jane is an adult because minor children can’t inherit money directly while minors. Trusts provide more flexibility than a conservatorship can and provide greater tailoring of instructions, and greater protection for the money in the long run. 

‍Power of Attorney for Minor Children: This is a form where living parents temporarily (no more than six months) transfer some of their legal authority to other caretakers. Parents will often use this form if they are going to travel together and leave the children in the care of someone else. I’ve also seen this used when a child goes to live with a family member and the parent is accessible and available to check-in with.

‍Beneficiary: A beneficiary is someone that is inheriting money either by contract or through an estate.