Attorney-Trustee Requires Them to Be Durable POA?

[Cheego]

The last six months of learning about trusts has been far more difficult that we expected. My wife and I (both in our mid 50's) have no one who can act for our benefit in the event of our incapacity or demise. So we went down the road of attempting to work with Fidelity personal trust service. We felt like that was a huge waste of time. We also tried working with Schwab and came away feeling the same way.

We recently had a meeting with a small estate planning/elder care group in our area. This law firm has very good Google reviews and they did a small job for my father several years ago which worked out well. One of the principals of the company accepted us as clients. She is well-versed, friendly, and helpful. But in order for her to act as trustee, we also have to allow her to be our immediate POA. There is no option for springing powers which is a concern.

So a few questions stand out...

1. How do we vet this attorney/firm and gain comfort knowing we are basically giving them access to our entire nestegg?
2. Is it common and acceptable for the attorney-trustee to also take on the immediate role of durable POA?
3. If she takes on these roles, should we be more vigilant about monitoring our accounts?
4. Are there any other steps we can take to protect ourselves from the possibility of fraud resulting from her or her firm's actions?

Many, many thanks for any helpful replies!

[ResearchMed]

The last six months of learning about trusts has been far more difficult that we expected. My wife and I (both in our mid 50's) have no one who can act for our benefit in the event of our incapacity or demise. So we went down the road of attempting to work with Fidelity personal trust service. We felt like that was a huge waste of time. We also tried working with Schwab and came away feeling the same way.

We recently had a meeting with a small estate planning/elder care group in our area. This law firm has very good Google reviews and they did a small job for my father several years ago which worked out well. One of the principals of the company accepted us as clients. She is well-versed, friendly, and helpful. But in order for her to act as trustee, we also have to allow her to be our immediate POA. There is no option for springing powers which is a concern.

So a few questions stand out...

1. How do we vet this attorney/firm and gain comfort knowing we are basically giving them access to our entire nestegg?
2. Is it common and acceptable for the attorney-trustee to also take on the immediate role of durable POA?
3. If she takes on these roles, should we be more vigilant about monitoring our accounts?
4. Are there any other steps we can take to protect ourselves from the possibility of fraud resulting from her or her firm's actions?

Many, many thanks for any helpful replies!

Interesting question. Note: IANAL.

I can see the point of the attorney not wanting to end up in the position of needing to wait for the certification of "incapacity" declared before they can "do anything".

Can you discuss with them that you Do or do NOT want them to <do whatever> while you are still "able", or at least until they have concerns about your capabilities?

Not all attorneys are, er, ethical, but "on average", I'd prefer to trust an attorney than a non-attorney, knowing nothing else about someone... (?).

If you are expecting to trust them when you can NOT "watch things", presumably you should be able to trust them sooner, while you CAN "watch things"...?

I'd discuss this with them. If you don't feel comfortable discussing this, that's another issue.

Also, can things be set such that they don't handle things until both of you are not capable, vs. when just one of you may be having difficulties? That would just be by agreement, not the legally binding DPOA, of course.

Perhaps some BH attorneys have better ideas.

RM

[123]

The immediate durable POA could be a mechanism to support higher on-going fees since they are in "hot standby" mode.

Perhaps an alternative is to give the attorney a full agent authorization to access a single significant pile of assets in a segregated brokerage account (say $100K - $250K for an example). That could tide them over until they are able to establish your total incapacity, or you both otherwise decide to relinquish control. You could keep absolute control of the your other million$ that way.

There may be mechanisms to allow the attorney to get copies of other account statements to monitor them without access to the account. If nothing else you could forward copies of such statements.

If you don't wish for the attorney to have immediate durable POA access to everything you could simply decline that option saying you are concerned about the broader potential for account hacking if more individuals have access to the accounts.

[bsteiner]

The last six months of learning about trusts has been far more difficult that we expected. My wife and I (both in our mid 50's) have no one who can act for our benefit in the event of our incapacity or demise. So we went down the road of attempting to work with Fidelity personal trust service. W e felt like that was a huge waste of time. We also tried working with Schwab and came away feeling the same way.

We recently had a meeting with a small estate planning/elder care group in our area. [1] This law firm has very good Google reviews [2] and they did a small job for my father several years ago which worked out well. One of the principals of the company accepted us as clients. She is well-versed, friendly, and helpful. But in order for her to act as trustee, we also have to allow her to be our immediate POA. [3] There is no option for springing powers which is a concern. [4]

So a few questions stand out...

1. How do we vet this attorney/firm and gain comfort knowing we are basically giving them access to our entire nestegg? [5]
2. Is it common and acceptable for the attorney-trustee to also take on the immediate role of durable POA? [6]
3. If she takes on these roles, should we be more vigilant about monitoring our accounts?
4. Are there any other steps we can take to protect ourselves from the possibility of fraud resulting from her or her firm's actions?

...

1. While there's some overlap, trusts and estates (mainly Wills, trusts and estates) and elder law (mainly Medicaid and guardianships) are for the most part different practice areas.

2. Google reviews are probably a negative indicator.

3. You shouldn't have to, though you may want to. Of course, if she's a trustee, she may not need to be agent under a power of attorney.

Note that a power of attorney is a piece of paper (or several pieces of paper). She can be an agent under a power of attorney, but she can't be a power of attorney.

4. The trend is away from springing powers. They're not allowed in Florida. However, they're allowed in other states. The issue, unless the test for whether the contingency has occurred, is an objective test, it can be difficult to determine whether the contingency has occurred.

5. There's no perfect solution, but you can get a sense of the lawyer from her bio and her firm's website.

6. I don't think it's common, but the other solution is to create a trust for your own benefit and have her as a co-trustee.

[J295]

Use a trust department at a locally owned bank. That’s a solid option in our community.

[mkc]

We are in a similar situation where we don't have a family member appropriate for DPOA/successor trustee role. Our attorney gave us several options for alternatives, none of which were her or anyone in her firm.

[Bobby206]

Having the durable POA be the same as trustee (and probably executor of the will also) makes sense. However, makes ZERO sense why it can't spring into effect since the others spring. Also, might look into requiring a surety bond if you want to add a layer of protection.

[Cheego]

6. I don't think it's common, but the other solution is to create a trust for your own benefit and have her as a co-trustee.

Thank you. Can you kindly explain what you mean by this?

[Cheego]

We are in a similar situation where we don't have a family member appropriate for DPOA/successor trustee role. Our attorney gave us several options for alternatives, none of which were her or anyone in her firm.

I'd love to know more. Can you tell me about these alternatives? (PM is fine if you want).

[bsteiner]

6. I don't think it's common, but the other solution is to create a trust for your own benefit and have her as a co-trustee.

Thank you. Can you kindly explain what you mean by this?

Exactly that. Create a trust for your own benefit. You and she would be the trustees.

[Cheego]

Having the durable POA be the same as trustee (and probably executor of the will also) makes sense. However, makes ZERO sense why it can't spring into effect since the others spring. Also, might look into requiring a surety bond if you want to add a layer of protection.

The attorney wrote this to me...
Springing POAs create a lot of time and expense because there is a sizable challenge to coordinate with healthcare providers to obtain the certificates required to satisfy financial institutions to show that they should accept the POA. This process can take weeks if not months.

I wouldn't care about "weeks if not months" if my wife and I had both passed. The beneficiaries can wait. The concern is if there is incapacity, and the agent with POA having the quick ability to get the surviving incapacitated spouse the care he/she needs (and that the absolute best care is given in light of the available assets owned). I hope that last sentence makes sense.

[Cheego]

Thank you. Can you kindly explain what you mean by this?

Exactly that. Create a trust for your own benefit. You and she would be the trustees.

Unfortunately, I don't understand what you mean. My wife and I are the trustees. The attorney would be the successor trustee (and agent with POA). Help me understand how having the attorney be the co-trustee makes a difference. I really want to grasp this idea. Thank you!

[LotsaGray]

Having the durable POA be the same as trustee (and probably executor of the will also) makes sense. However, makes ZERO sense why it can't spring into effect since the others spring. Also, might look into requiring a surety bond if you want to add a layer of protection.

There are multiple reasons not to use a springing POA. The three biggest are a) some states do not allow them, b) they can be difficult to “pre register” with 3rd parties since they could be very aged before active and c) proving they have “sprung” is often difficult and almost always incurs a cost (which will initially be born by the agent). I would expect that most such situations use DPOA.

To OP, I understand your concerns but consider when you won’t have capacity to closely monitor them, they will be exercising those powers. If you can’t trust them when you are able to monitor, do you want to trust them when you are unable?

Other protections. The attorney will have bonds and/or insurance with the state, obv you can sue, even with an active DPOA you can make it a limited POA. In fact here there really are no blanket POAs and certain powers must be specifically enumerated.

The situation described seems to be a firm with multiple attorneys. I would expect they have some kind of internal controls such that even were this attorney to go rogue the firm would have procedures to prevent and detect these. The whole firm would have exposure.

Ultimately there will always be some level of trust required (these are after all called trust documents). If you can’t trust them now, can you trust them in 20 years when you and SO are wo capacity?

[afan]

If I were going to have someone be trustee and attorney in fact, I would want to see them in action while I was competent to monitor what they did. It is easily possible for you to need someone to manage affairs that do not go through your trust. You would need SOMEONE to have the durable power of attorney. If you do not have friends of family members who can do it then this may be your only alternative.

As for the risk of fraud, I would agree that a bank trust department is likely safer. However, you may not be able to find a bank or trust company that will serve as attorney in fact. The few I have asked will be serve as trustee only, no POA.

This might make life more difficult, but you could have two trusts, with different assets, and two trustees. That way, no single entity has control of everything. By the same token, you could have carefully crafted DPOA documents that split up the job, so that one entity could, for example, handle mortgage and other loans, all the way up to selling your home if you enter a nursing home. But someone else would have the power to for example, deal with insurance companies. You could make a list of things you do for yourself and that someone else would need to do for you and divide up the tasks.

That sounds like a nightmare to deal with for the people acting on your behalf. I would expect your lawyer to refuse such terms.

[mkc]

We are in a similar situation where we don't have a family member appropriate for DPOA/successor trustee role. Our attorney gave us several options for alternatives, none of which were her or anyone in her firm.

I'd love to know more. Can you tell me about these alternatives? (PM is fine if you want).

She gave us a list of trust companies she had worked with in the past. We contacted those plus a few others I found in our state (we are in Tennessee which allows Community Property Trusts if at least one trustee is a TN resident or chartered trust company.) One stood out for our needs (and also in their responsiveness and completeness in answering questions.) They are named in successor roles in our estate documents.

We do have family members named in successor roles for health care power of attorney, but they would not be the right individuals for financial roles.

[J295]

I'd love to know more. Can you tell me about these alternatives? (PM is fine if you want).

She gave us a list of trust companies she had worked with in the past. We contacted those plus a few others I found in our state (we are in Tennessee which allows Community Property Trusts if at least one trustee is a TN resident or chartered trust company.) One stood out for our needs (and also in their responsiveness and completeness in answering questions.) They are named in successor roles in our estate documents.

We do have family members named in successor roles for health care power of attorney.

Sounds like a very good outcome.

This retired lawyer firmly opposed to lawyers as POA, trustee, etc.

[Ranunculus]

Your questions were intriguing so I searched the procedure to revoke the POA if you should change your minds. It doesn’t look too onerous, especially this option:

By burning, tearing, canceling, or destroying the Power of Attorney with the intent to
revoke the document. This can be done by you or by another person acting under your
direction and in your presence.

https://web.law.duke.edu/sites/default/ ... orney5.pdf

You will likely make a number of amendments to your estate documents over the years, especially if your attorney retires or moves away. Who will succeed her if that happens? Poorly defined succession plans at small firms have caused us to focus on larger institutions as successor trustees. It’s an age dependent risk though, at 95 I would be less concerned about designating a young attorney as co-trustee than at 55.

[Bobby206]

Having the durable POA be the same as trustee (and probably executor of the will also) makes sense. However, makes ZERO sense why it can't spring into effect since the others spring. Also, might look into requiring a surety bond if you want to add a layer of protection.

There are multiple reasons not to use a springing POA. The three biggest are a) some states do not allow them, b) they can be difficult to “pre register” with 3rd parties since they could be very aged before active and c) proving they have “sprung” is often difficult and almost always incurs a cost (which will initially be born by the agent). I would expect that most such situations use DPOA.

To OP, I understand your concerns but consider when you won’t have capacity to closely monitor them, they will be exercising those powers. If you can’t trust them when you are able to monitor, do you want to trust them when you are unable?

Other protections. The attorney will have bonds and/or insurance with the state, obv you can sue, even with an active DPOA you can make it a limited POA. In fact here there really are no blanket POAs and certain powers must be specifically enumerated.

The situation described seems to be a firm with multiple attorneys. I would expect they have some kind of internal controls such that even were this attorney to go rogue the firm would have procedures to prevent and detect these. The whole firm would have exposure.

Ultimately there will always be some level of trust required (these are after all called trust documents). If you can’t trust them now, can you trust them in 20 years when you and SO are wo capacity?

Since successor trustees "spring" into effect it should be very easy, and sensible, to have the POA also spring. In fact, I would think you could usually similar language - i.e. licensed doctor says incapable. I am retired, so may be rusty on this stuff, but after 30 years and thousands of estate plans I feel pretty knowledgeable. As to states that don't allow springing powers I'll have to believe you though it makes no sense.

[Bobby206]

Having the durable POA be the same as trustee (and probably executor of the will also) makes sense. However, makes ZERO sense why it can't spring into effect since the others spring. Also, might look into requiring a surety bond if you want to add a layer of protection.

The attorney wrote this to me...
Springing POAs create a lot of time and expense because there is a sizable challenge to coordinate with healthcare providers to obtain the certificates required to satisfy financial institutions to show that they should accept the POA. This process can take weeks if not months.

I wouldn't care about "weeks if not months" if my wife and I had both passed. The beneficiaries can wait. The concern is if there is incapacity, and the agent with POA having the quick ability to get the surviving incapacitated spouse the care he/she needs (and that the absolute best care is given in light of the available assets owned). I hope that last sentence makes sense.

I have never seen a situation that takes months and probably not even weeks to spring a POA. However, medical professionals are becoming harder and harder to get information from - they always say it's because of Hippa. Hmmmmm....

Having said all that an immediate POA is fine as long as you HIGHLY trust the person. Not a huge deal. In particular since most assets will be in your trust the POA may have limited application anyway!? Non-trust assets (such as IRAs) tend to be difficult as most financial institutions want a POA on their form - not a generic or attorney form.

Good luck!

[Cheego]

The situation described seems to be a firm with multiple attorneys. I would expect they have some kind of internal controls such that even were this attorney to go rogue the firm would have procedures to prevent and detect these. The whole firm would have exposure.

Thank you for your reply. I don't think the attorney would go rogue since she is the apparent founding owner of the firm and has more than a few partnering attorneys in the office. I have not yet asked about any succession plans at the firm.

Ultimately there will always be some level of trust required (these are after all called trust documents). If you can’t trust them now, can you trust them in 20 years when you and SO are wo capacity?

Understood, but my spouse and I are at the end of our options list. We have no family or no friends to act as our agent. It is relatively impossible to know if anyone can be trusted these days.

• Let's be honest... bio's written on a firm's websites clearly do not realistically tell you if the attorney can be trusted to act in good faith.

• Google reviews are sometimes questionable. This firm has 60+ reviews and they are all very good (though none to speak of this firm acting as agent with POA). I've looked at reviews for dozens of estate planning attorneys in the area and most of them have 1 to 6 mixed reviews. I suspect many potential review writers have second thoughts about exposing their experiences with attorneys in general.

• And, as we have found, attorney's do not like to give references to previous/current estate planning clients for obvious privacy reasons.

In this case, my concern is less about the attorney acting as trustee and more about them acting as DPOA. Both roles have the opportunity to help or harm us. But as trustee, their service to us is mostly after we are dead. As agent with DPOA, their service is mostly while we are alive and incapacitated. To answer your question though, there is a small, but important difference between having confidence in an attorney now versus decades down the road. Any damage that a dishonest agent with DPOA could do, would impact us for decades if the damages were unrecoverable.

[Cheego]

If I were going to have someone be trustee and attorney in fact, I would want to see them in action while I was competent to monitor what they did.

Thank you for the input, but what exactly do you mean? I don't think an attorney would let us sit in on a meeting with one of their clients for whom they are acting as trustee or agent.

[Cheego]

This retired lawyer firmly opposed to lawyers as POA, trustee, etc.

Why is that? Since we have no family or friends to do this, I'm not sure of any other options than an accountant.

[Cheego]

Having said all that an immediate POA is fine as long as you HIGHLY trust the person. Not a huge deal. In particular since most assets will be in your trust the POA may have limited application anyway!?

That is kind of the concern here. Without family or friends, we are basically picking an attorney who we know virtually nothing about. Trusting someone with an opportunity to marginally impact your life is not a huge challenge. But HIGHLY trusting someone you really don't know with the ability to financially wipe you out during your non-incapacitated decades is so much more of a challenge.

[drzzzzz]

Have you explained your concerns to the attorney? Do you not have any friends who could be a co-trustee or is there a way to set up a POA so that over a certain dollar amount two individuals need to agree?

[tibbitts]

Have you explained your concerns to the attorney? Do you not have any friends who could be a co-trustee or is there a way to set up a POA so that over a certain dollar amount two individuals need to agree?

I'm not an expert but I think it would be completely unworkable to expect two people - who don't even know each other - to coordinate for large expenses. Also there may be people you'd trust to do PoA activities for you, but that doesn't mean they're going to agree, since it can turn out to be a big responsibility.

[Cheego]

Have you explained your concerns to the attorney? Do you not have any friends who could be a co-trustee or is there a way to set up a POA so that over a certain dollar amount two individuals need to agree?

We have another meeting scheduled with the attorney to further discuss or worries - with the hope she will not be frustrated by our lack of total trust in her. Sadly, if my spouse and I had any friends whatsoever, we wouldn't be in the predicament that we are. This event puts a spotlight on our years of introversion and the damage that comes from being the way we are. There is a very strong sense of guilt and despair at this point.

[afan]

If I were going to have someone be trustee and attorney in fact, I would want to see them in action while I was competent to monitor what they did.

Thank you for the input, but what exactly do you mean? I don't think an attorney would let us sit in on a meeting with one of their clients for whom they are acting as trustee or agent.

I mean that I would start the DPOA service now so that I could see how they function while I am competent to evaluate their performance. If I did not like what they did, then I could fire them as attorney in fact and hire a new trustee.

The alternative is for them to take over after you are incapacitated, by which time you will be unable to assess their service. If they do a bad job, you may never realize it.

[Bobby206]

Having said all that an immediate POA is fine as long as you HIGHLY trust the person. Not a huge deal. In particular since most assets will be in your trust the POA may have limited application anyway!?

That is kind of the concern here. Without family or friends, we are basically picking an attorney who we know virtually nothing about. Trusting someone with an opportunity to marginally impact your life is not a huge challenge. But HIGHLY trusting someone you really don't know with the ability to financially wipe you out during your non-incapacitated decades is so much more of a challenge.

Yup. It's good to be careful. Attorney, bank, friend, relative, etc... whoever... be careful! In California, for example, they have private professional fiduciaries. They are cheaper than attorneys and more focused on managing people's stuff. However, they can steal, make mistakes, etc.... In any event requiring a surety bond is an option but that costs money! Adds a nice layer of protection but is not free. Good luck!

[clip651]

Have you explained your concerns to the attorney? Do you not have any friends who could be a co-trustee or is there a way to set up a POA so that over a certain dollar amount two individuals need to agree?

We have another meeting scheduled with the attorney to further discuss or worries - with the hope she will not be frustrated by our lack of total trust in her. Sadly, if my spouse and I had any friends whatsoever, we wouldn't be in the predicament that we are. This event puts a spotlight on our years of introversion and the damage that comes from being the way we are. There is a very strong sense of guilt and despair at this point.

Instead of guilt and despair, how about reaching out in some small ways to make connections? You may not make the kinds of friends to be your POA, but you might make acquaintance or friendship with various people that you could visit with, ask for local referrals (anyone know a good plumber?), have coffee with, learn a new hobby with, check in on each other during a power outage, go for a short walk on a local trail, or whatever. Maybe try volunteering a few hours a month for a local food bank or with a church or some other local charity that needs help so you have a defined task and reason to be part of the group. And/or say hi to your neighbors and get to know them a little. Or go to a class or join a club or some sort, something low key, maybe a free class at the library or community center.

Not trying to change you from being introverts to extroverts, of course, but just suggesting you try reaching out a little to feel a bit less isolated - you might even enjoy it in small doses. I'm an introvert too, but I'm working on reaching out a bit so I don't accidentally go from introvert to hermit. I'm single so it's even more important for me. Unfortunately one of you is likely to be single someday, too, and would be good to get to know a few folks.

best wishes,
cj

[Cheego]

We have another meeting scheduled with the attorney to further discuss or worries - with the hope she will not be frustrated by our lack of total trust in her. Sadly, if my spouse and I had any friends whatsoever, we wouldn't be in the predicament that we are. This event puts a spotlight on our years of introversion and the damage that comes from being the way we are. There is a very strong sense of guilt and despair at this point.

Instead of guilt and despair, how about reaching out in some small ways to make connections? You may not make the kinds of friends to be your POA, but you might make acquaintance or friendship with various people that you could visit with, ask for local referrals (anyone know a good plumber?), have coffee with, learn a new hobby with, check in on each other during a power outage, go for a short walk on a local trail, or whatever. Maybe try volunteering a few hours a month for a local food bank or with a church or some other local charity that needs help so you have a defined task and reason to be part of the group. And/or say hi to your neighbors and get to know them a little. Or go to a class or join a club or some sort, something low key, maybe a free class at the library or community center.

Not trying to change you from being introverts to extroverts, of course, but just suggesting you try reaching out a little to feel a bit less isolated - you might even enjoy it in small doses. I'm an introvert too, but I'm working on reaching out a bit so I don't accidentally go from introvert to hermit. I'm single so it's even more important for me. Unfortunately one of you is likely to be single someday, too, and would be good to get to know a few folks.

best wishes,
cj

Thank you for the warm and helpful reply. It is incredibly kind. We’ve both been far more socially active in the last two or three years. I volunteer for a local nonprofit organization and my wife often gets involved as well. We were active in some groups at our church in years past. Though we meet a fair number of people, there seems to be a void that develops when they hear that we don’t have children. Note that we are childless, not child-free (there is a difference).

There is a very sizable group of people in this world without children but they don’t seem to be easy to find. A subset of those people also don’t have younger siblings or family to help them in their final years. My spouse and I are in that group. I’ve often wondered how many of us wish there was a website for childless and child-free people/couples to discuss the financial, estate planning, and healthcare concerns. There are some podcasts and financial planners that are geared in this direction, but our cohort needs a less profit-motivated center of community.

Back to your comments now. It would be great to have real friends. When my spouse and I worked in other companies, we developed some relationships with others but then we started our own small business (which is the two of us) and friends seemed to move on without us. They all had families and in some cases, families with heavy needs.

No doubt we could and should be trying more to develop even friendships but after so many tries at it, it gets frustrating when many people really don’t want deep friendships where a discussion is more than just the weather. And my spouse and I eschew social media so that makes it harder to open the door to new friendships. I’ve wished there was a website where everyday people could find local folks where a friendship could turn into something better than superficial (and non-sexual as the dating websites are these days).

Thank you again.

[Cruise]

OP, you asked about processes for vetting the attorney. I’m surprised that I haven’t noticed anyone suggest this, but each state’s bar is regulated by an entity, and significant disciplinary history is/can be public record. In my jurisdiction, the Office of Disciplinary Counsel is the arm of the State Supreme Court involved in attorney disciplinary proceedings. In other jurisdictions it is the state bar association.

Onto another matter: FYI, my trust and estate attorney is at the very top in my state. When asked if he could serve as a trustee, he said his (large) firm does not allow this.

Good luck!

[Cheego]

OP, you asked about processes for vetting the attorney. I’m surprised that I haven’t noticed anyone suggest this, but each state’s bar is regulated by an entity, and significant disciplinary history is/can be public record. In my jurisdiction, the Office of Disciplinary Counsel is the arm of the State Supreme Court involved in attorney disciplinary proceedings. In other jurisdictions it is the state bar association.

Onto another matter: FYI, my trust and estate attorney is at the very top in my state. When asked if he could serve as a trustee, he said his (large) firm does not allow this.

Good luck!

Thank you for the comments. I've contacted our state's Attorney Grievance Commission office (not sure if that is the equivalent of who you mentioned for your state). They were only able to tell me that the lawyer we are considering has no past/current disciplinary actions.

I'm curious why your (and other BH's) trust/estate attorneys are not allowed to serve as trustee. Does this mean simply that drafter of the trust can not be the trustee? Or does it mean the attorney can not be a trustee even if they didn't draft the trust. It could be enlightening to know what liability are they trying to avoid with a policy like this.

[Cruise]

OP, you asked about processes for vetting the attorney. I’m surprised that I haven’t noticed anyone suggest this, but each state’s bar is regulated by an entity, and significant disciplinary history is/can be public record. In my jurisdiction, the Office of Disciplinary Counsel is the arm of the State Supreme Court involved in attorney disciplinary proceedings. In other jurisdictions it is the state bar association.

Onto another matter: FYI, my trust and estate attorney is at the very top in my state. When asked if he could serve as a trustee, he said his (large) firm does not allow this.

Good luck!

Thank you for the comments. I've contacted our state's Attorney Grievance Commission office (not sure if that is the equivalent of who you mentioned for your state). They were only able to tell me that the lawyer we are considering has no past/current disciplinary actions.

I'm curious why your (and other BH's) trust/estate attorneys are not allowed to serve as trustee. Does this mean simply that drafter of the trust can not be the trustee? Or does it mean the attorney can not be a trustee even if they didn't draft the trust. It could be enlightening to know what liability are they trying to avoid with a policy like this.

I never asked him, but I have been involved in a peripheral way in this arena for a long time and presume it is a prudent decision by the firm to avoid any appearance or actual conflict of interest. Another very realistic possibility is that the firm does not want to enter into that line of business, with all of the compliance issues.