Trustees: appointment, duties, powers, and liabilities - Duties governing investment decisions

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Overview

For SQE1 FLK2 exam candidates, understanding the legal framework of trustees' investment decisions is essential. This article delves into trustees' appointment, statutory duties, fiduciary roles, and liabilities, with an emphasis on the Trustee Act 2000. Familiarity with these concepts is vital for managing trust law complexities and succeeding in the examination.

Appointment and Responsibilities of Trustees

Trustees are generally appointed via the trust document, though courts may appoint them under certain conditions. The Trustee Act 1925 outlines a statutory scheme for trustee appointment and replacement.

Upon appointment, trustees assume roles marked by high trust and confidence, including:

  1. Loyalty to beneficiaries
  2. Fairness among beneficiaries
  3. Careful management of assets
  4. Accountability through precise record-keeping

Investment Duties and Powers

Statutory Duties Under the Trustee Act 2000

The Trustee Act 2000 updated trustees' investment powers and duties:

  1. General Power of Investment (Section 3): Trustees have broad investment freedom, subject to any trust document limits.
  2. Standard Investment Criteria (Section 4): Consider investment suitability and diversification.
  3. Duty to Obtain Advice (Section 5): Professional advice is necessary unless not required.
  4. Duty to Review (Section 4(2)): Regular reviews of investments are mandatory.

Applying Statutory Duties

Consider a trust with £1 million in assets for a young family. Trustees must:

  1. Explore varied investments for growth and income
  2. Seek professional advice on strategy
  3. Review the portfolio regularly
  4. Document their decision-making

Balancing Investment Goals

Trustees must balance different goals, especially with income and capital beneficiaries. For example, a trust with a life tenant and remainderman involves:

  1. Generating income for the life tenant
  2. Preserving and increasing capital for the remainderman

This may require combining income-generating and growth investments.

Fiduciary Duties in Investment Decisions

Fiduciary duties go beyond statutory requirements, demanding trustees act with the utmost good faith:

  1. Duty of Loyalty: Avoid conflicts of interest
  2. Duty of Care: Use reasonable skill and care
  3. Duty to Act Personally: Remain responsible even when delegating

Conflicts of Interest

The case of Boardman v Phipps [1967] 2 AC 46 demonstrates the strict nature of fiduciary duties. Trustees who personally benefited from an investment discovered in their role were found in breach of duty without beneficiary consent.

Delegation and Liability

Delegation of Investment Functions

The Trustee Act 2000 allows delegation in certain situations:

  1. Power to Delegate (Section 11): Trustees can delegate functions, including investments.
  2. Duty of Care in Delegation (Section 22): Exercise care in the selection, appointment, and monitoring of agents.
  3. Policy Statement (Section 15): Provide guidance for agents.

Liability in Delegation

Trustees remain accountable for:

  1. Agents' actions if due care wasn’t used in selection or oversight
  2. Trust breaches from poor supervision

Example: Trustees delegating to an investment manager must carry out due diligence, draft a policy statement, hold regular reviews, and keep detailed records.

Impact of the Trustee Act 2000 on Investment Decisions

The Act significantly updated trust law:

  1. Expanded Investment Powers: Wider powers to adjust to modern financial markets
  2. Codified Duties: Clearer decision-making framework
  3. Emphasis on Professional Advice: Recognition of investment challenges

Practical outcomes include:

  1. Better risk management through diversification
  2. Thorough documentation of decisions
  3. Active trust management with regular reviews

Conclusion

Understanding trustees' investment roles is key for SQE1 FLK2 exam success. Important points include:

  1. Trustees have extensive investment powers under the Trustee Act 2000, balanced by statutory and fiduciary duties.
  2. Decisions must consider suitability, diversification, and professional advice.
  3. Fiduciary duties require good faith and avoidance of conflicts.
  4. Delegation is possible but does not remove responsibility.
  5. The Trustee Act 2000 modernized trust law, focusing on active management and expert guidance.

Understanding these principles prepares future legal professionals to handle trust administration complexities and offer sound advice on trustee investments.