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Unif. Trust Code § 808(b)-(d) ratify the use of trust protectors and advisers. Section 808(c) is similar to Restatement (Third) of Trusts § 64(2). "Trust protector," a term largely associated with offshore trust practice, is more recent and usually connotes the grant of greater powers, sometimes including the power to amend or terminate the trust. Section 808(c) (as enacted in § 736.0808(3), Fla. Stat. (2008) ratifies the recent trend to grant third persons such broader powers. The provisions of this section may be altered in the terms of the trust. Unif. Trust Code § 105. A settlor can provide that the trustee must accept the decision of the power holder without question. Or a settler could provide that the holder of the power is not to be held to the standards of a fiduciary.
Zaven Minassian ("husband") executed a statement of trust in 1999 and executed a re-statement of trust in 2008. The restatement created a revocable trust, which became irrevocable upon his death. He named himself and his wife as the sole trustees. After his death in 2010, his children filed a complaint against his wife alleging that she was improperly administering the trust. They claimed she had breached her fiduciary duties, sought a surcharge against her, and demanded an accounting of the trust. In the midst of litigation in which the trustee of a family trust was being sued for accountings and breach of fiduciary duty, the trustee appointed a "trust protector," as allowed by the terms of the trust, to modify the trust's provisions. These modifications were unfavorable to the litigation position of the beneficiaries, and they filed a supplemental complaint to declare the trust protector's modifications invalid. The trial court found that, because the trust was unambiguous, the trust protector had no authority to change the terms of the trust.
Was the trust protector provision in the trust valid?
The court held that Section 736.0808(3), Fla. Stat., allowing for a trust protector, was not invalid, because under § 736.0106, Fla. Stat., to the extent it conflicted with common law precluding non-delegation of a trustee's discretionary powers, it overrode common law principles. Sections 736.0410-736.04115 and 736.0412, Fla. Stat., could be harmonized with § 736.0808(3) by concluding that the sections on modifying trusts did not provide the exclusive means to do so, at least insofar as a trust document granted a trust protector the power to do so. The trust was ambiguous, and because it was the settlor's intent that where his trust was ambiguous or imperfectly drafted, the use of a trust protector would be his preferred method of resolving those issues, removing that authority from the trust protector and assigning it to a court violated the settlor's intent.