(For Effective Date, See note.) Role of Directors; Petitioning Court for Instructions

  1. Law
  2. Georgia Code
  3. Wills, Trusts, and Administration of Estates
  4. Trusts
  5. Trust Directors
  6. (For Effective Date, See note.) Role of Directors; Petitioning Court for Instructions

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  1. Except as otherwise provided in this article, with respect to a power of direction, a trust director shall have the same fiduciary duty and liability in the exercise or nonexercise of the power of direction as a trustee in a like position and under similar circumstances.
  2. Where a trust director individually holds a power of direction, the trust director shall not have the liability of a cotrustee, whether under Code Section 53-12-305 or otherwise, with respect to a trustee or other trust director. Where a trust director holds a power of direction jointly with a trustee or other trust director, the trust director shall have the liability of a cotrustee, whether under Code Section 53-12-305 or otherwise, with respect to a trustee or other trust director regarding the actions of that trustee or other trust director that are within the scope of the jointly held power.
  3. Except as otherwise provided in the trust instrument, a trust director shall not have the duties imposed by Code Section 53-12-242 and subsection (b) of Code Section 53-12-243.
  4. Without limiting the scope of subsection (a) of this Code section:
    1. The trust instrument may vary a trust director's duty or liability to the same extent the trust instrument could vary the duty or liability of a trustee in a like position and under similar circumstances;
    2. An action against a trust director for breach of trust must be commenced within the same limitation period as under Code Section 53-12-307 for an action for breach of trust against a trustee in a like position and under similar circumstances; and
    3. A report or accounting shall have the same effect on the limitation period for an action against a trust director for breach of trust that the report or accounting would have under Code Section 53-12-307 in an action for breach of trust against a trustee in a like position and under similar circumstances.
  5. A trust instrument may make the existence of a trust director's power of direction contingent upon the occurrence of certain events, including a request to the trust director from a beneficiary or other similar party. A trust instrument may also provide that a trust director's power of direction terminates or is rescinded upon the occurrence of certain events, including but not limited to the passage of a specified period of time after a request. For purposes of Code Section 53-12-501, when a power of direction is contingent upon a request to a trust director from a person identified in the trust instrument, such person shall be deemed to hold a power of appointment.
  6. A trust instrument may empower a trust director to delegate a power of direction to a trustee and provide that, upon written acceptance of such delegation by the trustee, the trustee shall assume the fiduciary duties and liabilities conferred by the power of direction until such time as the trust director or trustee terminates the delegation by written notice. Except as otherwise provided in the trust instrument, during the time a power of direction is delegated in accordance with this subsection, the trust director making such delegation shall not be subject to a fiduciary obligation to monitor the trustee's exercise or nonexercise of the delegated power.
  7. Subject to subsection (j) of this Code section, a trust director shall:
    1. Keep trustees and other trust directors reasonably informed of the exercise or nonexercise of the trust director's power of direction to the extent such exercise or nonexercise is relevant to the party's powers and duties regarding the trust; and
    2. Respond to reasonable requests from trustees and other trust directors for information to the extent such information is relevant to the party's powers and duties regarding the trust.
  8. A trust director acting in reliance on information provided by a trustee or another trust director shall not be liable for a breach of trust to the extent the breach resulted from such reliance, unless the trust director acts in bad faith.
  9. Except as otherwise provided in the trust instrument, if a trust director is licensed, certified, or otherwise authorized or permitted by law other than this article to provide health care in the ordinary course of the trust director's business or practice of a profession, to the extent the trust director acts in such capacity, the trust director shall have no duty or liability under this article.
    1. Except as otherwise provided in the trust instrument, a trust director shall not have a duty to:
      1. Monitor a trustee or another trust director regarding matters outside the scope of the trust director's powers of direction; or
      2. Inform or give advice to a settlor, beneficiary, trustee, or another trust director concerning an instance in which the director might have acted differently from a trustee or another trust director.
    2. By taking one of the actions described in paragraph (1) of this subsection, a trust director does not assume any of the duties excluded by this subsection.
  11. A trust instrument may impose a duty or liability on a trust director in addition to the duties and liabilities under this Code section.
  12. A trust director that has reasonable doubt about a duty imposed by this Code section may petition the court for instructions.
  13. A trust director shall be subject to the same rules as a trustee in a like position and under similar circumstances in the exercise or nonexercise of a power of direction regarding:
    1. A payback provision in the trust necessary to comply with the reimbursement requirements of Medicaid law in Section 1917 of the Social Security Act, 42 U.S.C. Section 1396p(d)(4)(A), as amended, and regulations issued thereunder; and
    2. A charitable interest in the trust.

(Code 1981, §53-12-503, enacted by Ga. L. 2018, p. 262, § 25/HB 121; Ga. L. 2020, p. 377, § 1-90/HB 865.)


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