In this last post in my series of posts about the new California Directed Trust Act I highlight two very interesting possible additional director trustee powers that are listed in Section 6 of the national Uniform Directed Trust Act. If you will recall (yes, please read my prior posts in this series), the California Directed Trust Act does not contain an item by item list of possible director trustee powers – instead and for the most part the California Act states that the powers of the director trustee are those powers that are stated in the authority, terms and provisions that are provided in the specific directed trust. Additionally, however, the California Directed Trust Act at Cal. Probate Code §16630 states that in applying the California Directed Trust Act, “consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.” Thus, reference to the national Uniform Directed Trust Act (UDTA) can be appropriate and relevant although I would not necessarily conclude that the UDTA provisions are automatically applicable or are the law in California.

Unlike the California Directed Trust Act, the UDTA does contain a non-exhaustive list of possible director trustee powers in Section 6 (Powers of Trust Director). Remember, however, that the wording of the specific directed trust itself must provide for and contain the specific terms and provisions for the director trustee’s authority and power. Most director trustee authority and power provisions will pertain to the administration and management of the trust and of the assets that are in the trust. However, the following are two additional and interesting possible director trustee powers that are listed in Section 6 of the UDTA:

• The power to determine the capacity of a trustee, settlor, director, or beneficiary.
• The power to release a trustee or another trust director (director trustee) from liability for an action proposed or previously taken by the trustee or other director (director trustee).

As you might imagine the two above-described powers, if they are included in the terms and provisions of the specific directed trust certainly will cause and require considerable discussion and evaluation, and perhaps likely consideration by a Court. This post is the last in my initial series of posts about the new California Uniform Directed Trust Act. Please do read my several prior posts. I will continue to write directed trust posts as this new area of California law develops and as there are situations involving directed trusts or in which a directed trust might have been useful or relevant.

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David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

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http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.