How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask RayAnswers Your Own Question

RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 29405
Experience:  Texas lawyer for 29 years in Estate law
8534270
Type Your Estate Law Question Here...
RayAnswers is online now
A new question is answered every 9 seconds

So my question is about this section of the POA and Health

Customer Question

So my question is about this section of the POA and Health Surrogate which I am for my Great Aunt.

This is from the Health Surrogate

“My Health Care Surrogate shall not be entitled to compensation for services performed under this Designation, but shall be entitled to reimbursement for all reasonable expenses incurred as a result of carrying out any provision of this Designation.”
This is from the POA papers

“Compensation of Qualified Agents. My Attorney shall be entitled to reasonable
compensation for my Attorney's service under this Durable Power of Attorney, if such Attorney is a "Qualified Agent," as that term is defined in Section(NNN) NNN-NNNN4), Florida Statutes.”

Now besides that all of my Aunts Finances are in a name of a trust that she setup and because of this I have also become a co-trustee on her trust account to allow me access to her finances including bank accounts and investments. Now in that paper it mentions this…

“ That I have the ability to access the trust’s money, stock, funds and other property and to use the funds of the trust for the benefit of the settler.”

Now of course upon her death my POA papers cease to be in effect in addition to the co-trustee. At this point the financial institution is the successor of the trust and to throw another mix in the loop they are instructed to divide up her estate evenly between myself and my three brothers.

Based on this information I wanted to know how I figure out compensation for all the things I have been doing for her since April. Up until 2 months ago I have not taken any money from her unless she asks if I needed anything but recently now I use the Debt card linked to our co-trustee account to fill up my gas tank from driving back and forth to her house and lately I have asked for a few hundred dollars ever so often but because of her health she is becoming more forgetful and not even caring about the value of money anymore. Since April of 2013 I have invested a lot of my time getting her finances settled, getting my POA papers sent to all of her accounts and insurance companies, even settling up her claims with her long-term health care to get reimbursed for the 24 hour aide service that she now needs not to mention getting her doctor appointments scheduled and regulating paying her bills. Right now what I do is go to the ATM and pull out cash and leave the receipt in a box and I give that money to the aid for things that she needs and in turn the aid leaves me the receipts but is it ok that I take money out for myself every so often and put it in the same box? How do I go about taking money for myself? When she does pass I want to make sure that for whatever reason the successor (the financial institution) isn't going to go after me for any reason... Because of the fact that I am a beneficiary as well as I was the co-trustee before her death.
Submitted: 10 months ago.
Category: Estate Law
Expert:  RayAnswers replied 10 months ago.

Hi and welcome to JA. I am Ray and will be assisting you this evening.

Let's go through your questions here.

Under the law you are not able to pay yourself any commission under the Health Care Surrogate. You may be able to pay yourself under the regular POA you reference.As you can see below the statute allows this if you are a relative here.If you want protection I would suggest that you have the other trustee approve any fees or reimbursement in writing.

You also need an itemized expense lists of say gas receipts or other items for reimbursement as well as some indication of what service you provided to the aunt here.Say you used gas to transport her or visit here ow whatever.It is important that you document this now in case it comes up later.

If there is another co trustee having them approve this and pay you would offer you additional protection down the road.Just taking out finds here periodically is going to open you up to claims of self dealing here.You need to submit a monthly time sheet for your hours and a reasonable hourly rate for your work say $10-$20 hour.

And you really need the co trustee to approve this if you are claiming payment as either the POA or trustee.If there is a co trustee it is reasonable that they be paid as well so you may sign off on their time sheet and payment.

I am really uneasy about leaving cash for the hired help.Certainly you can pay her when she hands you receipts but it is important to account for every penny because of your fiduciary duties.

 

Overall it is so critical you keep detailed records--you can bill for your time to prepare them because you may well have to account for all of this down the road.

Florida Statutes(NNN) NNN-NNNN- Reimbursement and compensation of agent

Florida Statutes > Chapter 709 > Part II >(NNN) NNN-NNNN/h4>

 

Current as of: 2012
(1)  Unless the power of attorney otherwise provides, an agent is entitled to reimbursement of expenses reasonably incurred on behalf of the principal.
(2) Unless the power of attorney otherwise provides, a qualified agent is entitled to compensation that is reasonable under the circumstances.
(3) Notwithstanding any provision in the power of attorney, an agent may not be paid compensation unless the agent is a qualified agent.
(4) For purposes of this section, the term "qualified agent" means an agent who is the spouse of the principal, an heir of the principal within the meaning of s. 732.103, a financial institution that has trust powers and a place of business in this state, an attorney or certified public accountant who is licensed in this state, or a natural person who is a resident of this state and who has never been an agent for more than three principals at the same time.



I appreciate the chance to assit you tonight.Please let me know if you have more follow up.Thanks again.

Expert:  RayAnswers replied 10 months ago.

Here is the law on claiming reimbursement for being trustee..

736.0708 Compensation of trustee.

(1) If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances.
(2) If the terms of a trust specify the trustee’s compensation, the trustee is entitled to be compensated as specified, but the court may allow more or less compensation if:
(a) The duties of the trustee are substantially different from those contemplated when the trust was created; or
(b) The compensation specified by the terms of the trust would be unreasonably low or high.
(3) If the trustee has rendered other services in connection with the administration of the trust, the trustee shall also be allowed reasonable compensation for the other services rendered in addition to reasonable compensation as trustee.
Here is the leading case on what is reasonable..

West Coast Hospital Assoc. v. Florida National Bank, 100 So.2d 807, 811 (Fla. 1958) where the court stated that the following factors determine a reasonable fee:

 

The following factors may be influential in enabling the court to reach a conclusion as to the appropriate amount of pay which should be granted the trustee in a given case: The amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing like work in the community; the success or failure of the administration of the trustee; any unusual skill or experience which the trustee in question may have brought to his work; the fidelity or disloyalty displayed by the trustee; the amount of risk and responsibility assumed; the time consumed in carrying out the trust; the custom in the community as to allowances to trustees by settlors or courts and as to charges exacted by trust companies and banks; the character of the work done in the course of administration, whether routine or involving skill and judgment; any estimate which the trustee has given of the value of his own services; payments made by the cestuis to the trustee and intended to be applied toward his compensation."

You should again keep detailed log by date and time the amount of hours you spent here as trustee and then the duty performed be it reconciling your time sheets or whatever for the beneficiaries of the trust.This protects you from any claims you violated your fiduciary duties and engaged in self dealing.

I do appreciate the chance to assist you tonight.Please let me know if you have more follow up.Thanks again for letting me help you.

Customer: replied 10 months ago.

 

On her trust account it is just myself as co-trustee and my aunt as the main trustee... I was never told about having to keep time sheets and whatnot so I never had but its at a point where my aunt can't sign for things. This is why she gave me the legal powers she did because of her failing health... What is the easiest way to go and back track. Like I said my main concern is the financial institution who is the successor I have not touched any of the money they hold which is the largest asset I only take and use the money that is in her checking account. When she does pass they are going to have to request that the bank turn over the money in the checking accounts to them. With the aide she leaves me the receipts so I add up the money being used and what she doesn't use for that day sits next to the receipts as well. I really don't know any other way to give her money so she can take care of my aunt. I pay her company through the bank with online checking like I do most of her bills. Can I do something simple like add up and list out in excel all the money she has given me list the check #'s and debt dates I took money out and just write out a note for her on the paper stating she authorized all these payments to me as my POA duties and as of right now just stop taking money? I really don't want to legally get in trouble for anything. But how do I account for the money I am taking out to give to the aide to pay for items my aunt needs?

Expert:  RayAnswers replied 10 months ago.

Well you have two hats here.If you are acting as POA you can pay yourself or as trustee.But you need to make an itemized time sheet for any future payments.This is the only way to be able to justify this in case there is question.And if you are leaving money for the help you have to account for it by again saving the receipts.

I just cannot emphasize even if you start today keep great records.You cannot possibly remember this down the road.It is especially critical if you are going to pay yourself a fee.By time keeping you show the amount of work you put into this.Its reasonable and a bank or a court would expect that.As far as the past I woudl sure try to organize any receipts, bank statements, etc so that if you need to account for this you can do so.And you can bill the trust for such work or even hire a professional such as a CPA to work with you and bill the trust.

Thanks for the follow up here.I wish you the best.I know that you have put in a lot of work and have done the best you can.You just need to make sure you keep some more detailed records here.

If you are looking for guidance about what is reasonable as a trustee fee here is the best Florida offers.

Under FL law a trustee is entitled to a reasonable fee. I think a good standard to use is the commission due an executor. In many states the executor and trustee are entitled to the same fee. Here is the schedule of executor commissions in FL.This is based on the gross value of the estate.

 

A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:
(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.
(3) In addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:
(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.

Customer: replied 10 months ago.


Real quick I understand going forward about making sure I keep records but if I can go back and list out everything she has given me even checks that she has signed her self back in april through june and put them out like


date----amount---etc...


at the bottom write something like I name of the main trustee authorized these payments to Michael for his POA duties and had her sign it would that protect me from the past stuff?

Expert:  RayAnswers replied 10 months ago.

Yes you can this is a great way to try and improve the records here.It is probably the best you can do.And it gives you the chance to reconcile now.Also you can bill here for the amount of time you spend doing it here.That's a reasonable expense for the aunt and it helps you show you take the fiduciary duties seriously.

Thanks again I wish you the best here.I appreciate the chance to help you.

RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 29405
Experience: Texas lawyer for 29 years in Estate law
RayAnswers and 2 other Estate Law Specialists are ready to help you
Expert:  RayAnswers replied 10 months ago.
Thank you for your positive rating of my service to you. Let me know if you need more help or have future questions. I will be here for you. Just ask for me by name at the start of your question - "Ray" .


Best wishes and good luck to you.

If it is not too much trouble, when you receive a Customer Satisfaction Survey from JA/Pearl in a day or two, please consider rating me highly (9 or 10). It affects my ability to continue to assist you and other customers on JA/Pearl and would be most appreciated.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
< Last | Next >
  • My husband has been driving me insane with questions regarding estate issues since his mother died. I'm not a lawyer! Thanks to JustAnswer, I was able to calm his concerns. Loretta T Illinois
  • Thanks Adam!! - A very direct and understandable response - you have been a great help! Happy Customer Ellicott City, MD
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
 
 
 

Meet The Experts:

 
 
 
  • Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
< Last | Next >
  • http://ww2.justanswer.com/uploads/MC/mclemorelawyer/2011-9-21_193631_IMGP8718Version2.64x64.jpg Thomas McJD's Avatar

    Thomas McJD

    Attorney

    Satisfied Customers:

    3076
    Wills, Trusts, Probate & other Estate Matters
  • http://ww2.justanswer.com/uploads/NY/nyclawyer/2012-6-7_22011_photo66139201112041.64x64.jpg Infolawyer's Avatar

    Infolawyer

    Attorney

    Satisfied Customers:

    3781
    Licensed attorney helping individuals and businesses.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Attorney

    Satisfied Customers:

    2188
    13 yrs estate law, real estate. Wills/Trusts/Probate
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg RayAnswers's Avatar

    RayAnswers

    Attorney

    Satisfied Customers:

    1484
    Texas lawyer for 29 years in Estate law
  • http://ww2.justanswer.com/uploads/RO/RobertJDFL/2012-6-6_175352_7538220120606.64x64.jpg RobertJDFL's Avatar

    RobertJDFL

    Attorney

    Satisfied Customers:

    1226
    Experienced in multiple areas of the law.
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Attorney

    Satisfied Customers:

    770
    12+ yrs. of experience including estate law.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    754
    Fully licensed attorney in Texas in private practice.