The bank should not be able to audit fiduciary accounts to determine whether the agent or agent will perform its duties properly. The agent ultimately determines what functions to keep and what functions to delegate. Even a court may not be empowered to interfere with an agent`s discretion, unless it is fraud, misconduct or gross abuse of judgment. Living trusts pose unique problems for the delegation of trust functions. A living trust is not considered a creature of the state, as a trust of wills or inter vivo. It is often set up to manage family wealth, so specialized expertise such as that of investment brokers or real estate agents may not be involved. Fiduciary values may not be particularly complex. They function as individual accounts until the person becomes incapable of acting or dies. Due to the personal nature of the account, the agent may want to add a family member to the account as a co-signer.
However, the addition of a family member as a co-owner may grant the agent rights to trust property that is incompatible with the economic interests of the trust. Legal provisions that allow convenience signatures to be added to personal accounts may not apply to loyalty accounts. In addition, in the event of incapacity to work, there may be fewer controls (or no control) of the agent by the agent. As a result, some banks follow measures that exclude the addition of co-signers or convenience signatories to revocable or living fiduciary accounts. For banks, the question often arises as to whether an agent can register an agent in an account as a signatory or give the agent electronic access to accounts, including the right to transfer funds electronically. Are these measures a discretionary or departmental task? Depending on the case law, this may depend on how the trust is managed by the agent. In addition to the legal authority to delegate powers to an agent, the common law of the state may provide guidelines for the appointment of agent functions to agents, often as a result of the distinction between the discretionary function and the ministerial function mentioned above. Under this standard, the decision to allow the agent to add agents as a signatory may depend on factors such as the jurisdiction of the agent, the complexity of the decisions in question and the size of the trust. These examples raise a question that trustees often ask their banker: can I delegate part of my duties as an agent to an agent? As a general rule, an agent cannot delegate discretionary duties to an agent, since these functions have been appointed by the funder to the agent. Only the agent can act for the trust. However, an agent may delegate ministerial duties.
The widow of a long-time business client has been appointed trustee of her husband`s great will. The trust includes a ranch, oil and gas interests, securities, a tightly managed business, a family management company, a large residence and a holiday home. Recently, she appointed her husband`s personal assistant to assist her in her important fiduciary duties. Can she add the assistant as a signatory to the account? (1) to execute and deliver all legal instruments relating to the sale and transfer of the property, including sworn insurance, communications, declarations, waiver declarations or general or special warranty denominations that bind the agent to the rights retained or not by the seller or, if applicable, transfer them to a third-party lender; (2) accept certificates of order, acts of trust or other legal instruments; (3) approval of final returns that allow deductions on the sale price; (4) receive the agent`s net proceeds by cheque to the agent; (5) any in three who accepts the sale and acts under proxy to make it defective; (6) take all measures, including the signing of a necessary or appropriate document to sell