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30 Nov, 09
Trustee Duties
The duties of a trustee need not be onerous, but a failure to carry out those duties may, in a worst case scenario, result in a claim against you by a beneficiary who has suffered a loss as a result of your actions or omissions.
Whether you are a trustee in your own trust, or have consented to act as a trustee for a friend or family member, you need to understand what that role entails. The list below, while not exhaustive, sets out some of the most important trustee duties.
The duty of efficient management
- Whether you are an original, substitute or additional trustee you must first become familiar with and abide by the terms and conditions of the Trust Deed.
- Know the extent of the assets and liabilities of the trust and make sure that these are properly held in the name of the trustees.
- Ensure that the trust is managed and administered properly and that the trustees meet to discuss and agree on issues. Do not be a rubber stamp of the settlor's wishes. Take minutes of these meetings and record all resolutions.
- Make sure that the administration costs of the trust are kept to reasonable levels.
The duty to invest prudently
- Trustees must follow any directions in the Trust Deed before investing.
- Trustees have a duty to act in the way a prudent person would when managing another's property.
The duty to keep and render accounts to beneficiaries
- Make sure that a clear audit and paper trail is kept of all decisions and transactions. This will involve secure storage of the trust deed, minutes of meetings and resolutions, financial accounts, correspondence and other trust documents.
- Trustees have a duty to make certain information available, such as the trust deed, financial statements and investment strategies where that is necessary to allow beneficiaries to exercise their rights or hold trustee to account.
- However, trustees are not always obliged to give information to beneficiaries, and may withhold information where:
o The beneficiary is underage or lacks capacity;
o The information requested is commercially sensitive;
o Releasing the information would compromise privacy;
The duty to act personally
- Carry out your trustee duties personally.
- You may instruct an agent to carry out your decisions but you must make your own decisions and not be dictated to by other trustees, the settlors or beneficiaries.
- Trustee resolutions must be unanimous.
The duty of loyalty
- Always act in the best interests of both present and future beneficiaries and be impartial between beneficiaries.
- Avoid conflicts of interest.
- Do not benefit or profit from your position as trustee unless authorised to do so.
- You must always protect the interests of the beneficiaries.
In all things, a trustee's standard of care is measured against that of an ordinary prudent business person managing the affairs of others. Of course a higher standard is required if the trustee is a professional person such as a lawyer or accountant.
