An Act To Enact the Maine Uniform Directed Trust Act
Maine Legislature, Session 129, LD 1468
Committee: Judiciary
Amends: 18-B MRSA §103, 18-B MRSA §105, 18-B MRSA §603, 18-B MRSA §703, 18-B MRSA §808

Legislative Document
No. 1468
H.P. 1075
House of Representatives, April 2, 2019
An Act To Enact the Maine Uniform Directed Trust Act
Reported by Representative BAILEY of Saco for the Probate and Trust Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 18-A, section 1-803, subsection 2.
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218.
ROBERT B. HUNT
Clerk
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  18-B MRSA §103, sub-§17, as enacted by PL 2003, c. 618, Pt. A, §1 and 
affected by §2, is repealed and the following enacted in its place:
17.  Terms of a trust.  "Terms of a trust" means:
A.  Except as otherwise provided in paragraph B, the manifestation of the settlor's 
intent regarding a trust's provisions as:
(1)  Expressed in the trust instrument; or
(2)  Established by other evidence that would be admissible in a judicial 
proceeding; or
B.  The trust's provisions as established, determined or amended by:
(1)  A trustee or other person in accordance with applicable law;
(2)  Court order; or
(3)  A nonjudicial settlement agreement under this Code.
Sec. 2.  18-B MRSA §105, sub-§2, ¶B, as enacted by PL 2003, c. 618, Pt. A, §1 
and affected by §2, is amended to read:
B.  The Subject to the Maine Uniform Directed Trust Act, the duty of a trustee to act 
in good faith and in accordance with the purposes of the trust;
Sec. 3.  18-B MRSA §603, sub-§1, as amended by PL 2005, c. 184, §13, is 
further amended to read:
1.  Revocable trust.  While To the extent a trust is revocable, rights of the 
beneficiaries are subject to the control of, and the duties of the trustee are owed 
exclusively to, the settlor.
Sec. 4.  18-B MRSA §603, sub-§3 is enacted to read:
3.  Revocable trust; direction of settlor.  To the extent a trust is revocable by the 
settlor, the trustee may follow a direction of the settlor that is contrary to the terms of the 
trust.  To the extent a trust is revocable by the settlor in conjunction with a person other 
than the trustee or person holding an adverse interest, the trustee may follow a direction 
of the settlor and the other person holding the power to revoke even if the direction is 
contrary to the terms of the trust.
Sec. 5.  18-B MRSA §703, sub-§3, as enacted by PL 2003, c. 618, Pt. A, §1 and 
affected by §2, is amended to read:
3.  Participation by cotrustee.  A Subject to the Maine Uniform Directed Trust Act, 
a cotrustee must shall participate in the performance of a trustee's function unless the 
cotrustee is unavailable to perform the function because of absence, illness, 
disqualification or other temporary incapacity or the cotrustee has properly delegated the 
performance of the function to another trustee.
Sec. 6.  18-B MRSA §703, sub-§7, as enacted by PL 2003, c. 618, Pt. A, §1 and 
affected by §2, is amended to read:
7.  Reasonable care.  Each Subject to the Maine Uniform Directed Trust Act, each 
trustee shall exercise reasonable care to:
A.  Prevent a cotrustee from committing a serious breach of trust; and
B.  Compel a cotrustee to redress a serious breach of trust.
Sec. 7.  18-B MRSA §808, as enacted by PL 2003, c. 618, Pt. A, §1 and affected 
by §2, is repealed.
Sec. 8.  18-B MRSA Pt. 2 is enacted to read:
PART 2
MAINE UNIFORM DIRECTED TRUST ACT
PREFATORY NOTE
Background. The Uniform Directed Trust Act addresses an increasingly common 
arrangement in contemporary estate planning and asset management known as a "directed 
trust." In a directed trust, the terms of the trust grant a person other than a trustee a power 
over some aspect of the trust's administration. There is no consistent vocabulary to 
describe the person other than a trustee that holds a power in a directed trust. Several 
terms are common in practice, including "trust protector," "trust adviser," and "trust 
director." There is much uncertainty in existing law about the fiduciary status of a 
nontrustee that has a power over a trust and about the fiduciary duty of a trustee, 
sometimes called an "administrative trustee" or "directed trustee," with regard to actions 
taken or directed by the nontrustee. Existing uniform trusts and estates acts address the 
issue inadequately. Existing nonuniform state laws are in disarray.
Under the Uniform Directed Trust Act, a power over a trust held by a nontrustee 
is called a "power of direction." The holder of a power of direction is called a "trust 
director." A trustee that is subject to a power of direction is called a "directed trustee." 
The main contribution of the act is to address the many complications created by giving a 
power of direction to a trust director, including the fiduciary duty of a trust director and 
the fiduciary duty of a directed trustee.
Enabling Settlor Autonomy Consistent with Fiduciary Minimums. By validating 
terms of a trust that grant a trust director a power of direction, the Uniform Directed Trust 
Act promotes settlor autonomy in accordance with the principle of freedom of 
disposition. At the same time, the act imposes a mandatory minimum of fiduciary duty on 
both a directed trustee and a trust director in accordance with the traditional principle that 
a trust is a fiduciary relationship. See, e.g., Restatement (Third) of Trusts § 96 cmt. c 
(2012) ("[F]or reasons of policy trust fiduciary law imposes limitations on the types and 
degree of misconduct for which the trustee can be excused from liability.").
Structure of the Act. The heart of the Uniform Directed Trust Act appears in 
Sections 6 through 11, which address the powers and duties of a trust director and a 
directed trustee. Sections 6 through 8 address the kinds of powers that the terms of a trust 
can grant to a trust director and the default and mandatory fiduciary duties of the director. 
Section 9 addresses the fiduciary duty of a directed trustee. Sections 10 and 11 further 
elaborate the duties of a trust director and directed trustee, prescribing specific rules for 
information sharing and monitoring among trust directors and trustees. Section 12 
addresses cotrusteeship, enabling a settlor to apply the fiduciary standards of conduct for 
a directed trust under this act to a cotrusteeship. The remaining sections address a variety 
of important technical issues in this act's relationship to existing law and in the 
administration of a directed trust, including rules of construction for recurring matters 
that might be overlooked in the drafting of a directed trust.
Fiduciary Duty in a Directed Trust. Under the Uniform Directed Trust Act, a 
trust director has the same default and mandatory fiduciary duties as a trustee in a like 
position and under similar circumstances (Section 8). In complying with a trust director's 
exercise of a power of direction, a directed trustee is liable only for the trustee's own 
"willful misconduct" (Section 9). The logic behind these rules is that in a directed trust 
the trust director functions much like a trustee in an undirected trust. Accordingly, the 
trust director should have the same duties as a trustee in the exercise or nonexercise of the 
director's power of direction, and the fiduciary duty of the directed trustee is reduced with 
respect to the director's power of direction. 
In preserving some minimal fiduciary duty in a directed trustee, the drafting 
committee was influenced by the prominent directed trust statute in Delaware, which 
provides likewise. See Del. Code Ann. tit. 12, § 3313 (2017). The popularity of directed 
trusts in Delaware establishes that a directed trust statute that preserves in a directed 
trustee a duty to avoid "willful misconduct" is workable in practice. The drafting 
committee therefore declined the suggestion that the Uniform Directed Trust Act should 
eliminate the fiduciary duty of a directed trustee completely. 
In summary, under the Uniform Directed Trust Act a beneficiary's main recourse 
for misconduct by a trust director is an action against the director for breach of the 
director's fiduciary duty to the beneficiary. The beneficiary also has recourse against a 
directed trustee, but only to the extent of the trustee's own willful misconduct. Compared 
with a non-directed trust in which a trustee holds all power over the trust, a directed trust 
subject to this act provides for more aggregate fiduciary duties owed to a beneficiary. All 
of the usual duties of trusteeship are preserved in the trust director, and in addition the 
directed trustee has a duty to avoid willful misconduct.  
CHAPTER 21
MAINE UNIFORM DIRECTED TRUST ACT
§2101.  Short title
This Part may be known and cited as "the Maine Uniform Directed Trust Act."
Comment
(This is Section 1 of the Uniform Directed Trust Act (2017).)
This act governs an arrangement commonly known as a "directed trust." In a 
directed trust, the terms of the trust grant a person other than a trustee a power over some 
aspect of the trust's administration. Under this act, such a power is called a "power of 
direction," the person that holds the power is called a "trust director," a trustee that is 
subject to the power is called a "directed trustee," and the trust is a "directed trust" (see 
Sections 2(5), (9), (3), and (2) respectively). This act applies to any arrangement that 
exhibits the functional features of a directed trust within the meaning of this act, even if 
the terms of the trust use other terminology, such as "trust protector," "trust advisor," or 
"administrative trustee." 
§2102.  Definitions
As used in this Act, unless the context otherwise indicates, the following terms have 
the following meanings.
1.  Act.  "Act" means the Maine Uniform Directed Trust Act.
2.  Breach of trust.  "Breach of trust" includes a violation by a trust director or 
trustee of a duty imposed on that director or trustee by the terms of the trust, this Act or 
law of this State other than this Act pertaining to trusts.
3.  Directed trust.  "Directed trust" means a trust for which the terms of the trust 
grant a power of direction.
4.  Directed trustee.  "Directed trustee" means a trustee that is subject to a trust 
director's power of direction.
5.  Person.  "Person" means an individual, estate, business or nonprofit entity, public 
corporation, government or governmental subdivision, agency or instrumentality or other 
legal entity.
6.  Power of direction.  "Power of direction" means a power over a trust granted to a 
person by the terms of the trust to the extent the power is exercisable while the person is 
not serving as a trustee.  "Power of direction" includes a power over the investment, 
management or distribution of trust property or other matters of trust administration.  
"Power of direction" excludes the powers described in section 2105, subsection 2.
7.  Settlor.  "Settlor" has the same meaning as in section 103, subsection 14.
8.  State.  "State" means a state of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, the United States Virgin Islands or any territory or 
insular possession subject to the jurisdiction of the United States.
9.  Terms of a trust.  "Terms of a trust" means:
A.  Except as otherwise provided in paragraph B, the manifestation of the settlor's 
intent regarding a trust's provisions as:
(1)  Expressed in the trust instrument; or
(2)  Established by other evidence that would be admissible in a judicial 
proceeding; or
B.  The trust's provisions as established, determined or amended by:
(1)  A trustee or trust director in accordance with applicable law;
(2)  Court order; or
(3)  A nonjudicial settlement agreement under the Maine Uniform Trust Code.
10.  Trust director.  "Trust director" means a person that is granted a power of 
direction by the terms of a trust to the extent the power is exercisable while the person is 
not serving as a trustee.  The person is a trust director whether or not the terms of the trust 
refer to the person as a trust director and whether or not the person is a beneficiary or 
settlor of the trust.
11.  Trustee.  "Trustee" includes an original, additional and successor trustee and a 
cotrustee.
Comment
(This is Section 2 of the Uniform Directed Trust Act (2017).)
(1) Breach of trust. The definition of "breach of trust" in paragraph (1) makes 
clear that the term includes a breach by a trust director or a trustee of a duty imposed on 
that director or trustee by the terms of the trust, this act, or other law pertaining to trusts. 
Historically, the term has been used to reference a breach of duty by a trustee, as under 
Uniform Trust Code § 1001(a) (2000) and Restatement (Third) of Trusts § 93 (2012). By 
expanding the meaning of the term to include a breach of duty by a trust director, this 
paragraph resolves any doubt about whether such conduct is also a "breach of trust." 
In defining a breach of trust to include a breach of a duty imposed by this act, it is 
important to recognize that some of the duties imposed by this act are default rules that 
may be varied by the terms of the trust. The drafting committee contemplated that a trust 
director or a trustee would not be in breach of trust for conduct that was authorized by the 
terms of a trust to the extent that those terms are permissible under this act or other 
applicable law. 
(2) Directed trust. Under paragraph (2), a "directed trust" is a trust for which the 
terms of the trust grant a power of direction. A "power of direction" is defined by 
paragraph (5).
(3) Directed trustee. The definition of "directed trustee" in paragraph (3) refers 
only to a trustee that is subject to direction by a trust director. A trustee that is subject to 
direction by a cotrustee is not for that reason a directed trustee, as paragraphs (5) and (9) 
exclude a person from being a trust director while that person is serving as trustee. The 
term "directed trustee" thus includes many but not all trustees that in practice are 
sometimes called "administrative trustees." Relations between multiple trustees are 
governed by the law of cotrusteeship as modified by Section 12.
(4) Person. The definition of "person" in paragraph (4) follows the current 
Uniform Law Commission definition. 
(5) Power of direction. The definition of "power of direction" in paragraph (5) is 
expansive. It includes any "power over a trust" to the extent the power is exercisable at a 
time the power holder is not serving as a trustee. A power of direction may be structured 
as a power to direct the trustee in the exercise of the trustee's powers—for example, a 
power to direct the trustee in the investment or management of the trust property. A 
power of direction may also be structured as a power to act independently—for example, 
by amending the terms of a trust or releasing a trustee from liability. 
The definition includes a power only to the extent the power is exercisable at a 
time the power holder is not serving as a trustee. The purpose of this limitation is to 
exclude a person serving as trustee from the definition of a trust director, even though as 
trustee the person will inevitably have a "power over a trust." A trust director, in other 
words, is someone other than a trustee. The contribution of this act is to address the 
complications created by giving a person other than a trustee—that is, a trust director—a 
power over a trust. A power over a trust held by a trustee is governed by existing trust 
fiduciary law. 
The restriction in the definition to powers held by a person that is "not serving as 
a trustee" is also designed to be consistent with the definition of "trustee" in paragraph 
(10). Under paragraph (10), the term "trustee" includes an original, additional, and 
successor trustee. The definition of power of direction thus clarifies that a person that 
qualifies as a trustee under paragraph (10) by virtue of having served as an original 
trustee in the past or having been named as a successor trustee in the future may 
nevertheless be a "trust director" at a time when the person is not serving as a trustee. An 
original trustee that has ceased serving as a trustee but continues to hold a power over 
investments, for example, is a trust director under paragraph (5) even though the person 
also qualifies as a trustee under paragraph (10). 
The definition confirms that a power of direction may include a power over 
"matters of trust administration" as well as a power over "investment, management, or 
distribution of trust property." These examples are meant to illustrate the potential scope 
of a power of direction rather than to limit it. In using the term "administration," the 
drafting committee intended a meaning at least as broad as that found in the context of 
determining a trust's "principal place of administration," such as under Section 3(b). The 
drafting committee also intended the terms "investment, management, or distribution" to 
have a meaning at least as broad as that found in Uniform Trust Code § 815(a)(2)(b) 
(2000), which specifies a trustee's default powers. The comment to Section 6 provides 
examples of the kinds of specific powers that the drafting committee contemplated would 
fall within the definition of a power of direction.
(6) Settlor. The definition of "settlor" in paragraph (6) follows Uniform Trust 
Code § 103(15) (2004). 
(7) State. The definition of "state" in paragraph (7) follows the current Uniform 
Law Commission definition.
(8) Terms of a trust. The definition of "terms of a trust" in paragraph (8) updates 
the comparable definition in Uniform Trust Code § 103(18) (2004) to take notice of court 
orders and nonjudicial settlement agreements, both of which are of growing practical 
significance and are sometimes used to vary the terms of a trust from a settlor's original 
intent. The definition also takes notice of a power in a trustee or a trust director to modify 
the terms of a trust. 
The expanded definition of "terms of a trust" in this paragraph is consistent with 
the Restatement, which recognizes the possibility that the terms of a trust may later be 
varied from the settlor's initial expression. See Restatement (Third) of Trusts § 76 cmt. 
b(1) (2007) ("References … to the terms of the trust … also refer to trust terms as 
reformed or modified by court decree, and as modified by the settlor or others or by 
consent of all beneficiaries.") (internal cross-references omitted). 
(9) Trust director. The definition of a "trust director" in paragraph (9) refers to a 
person other than a serving trustee that is granted a power of direction by the terms of a 
trust. Such a person is a trust director even if the terms of the trust or the parties call the 
person a "trust adviser" or "trust protector" or otherwise purport to disclaim trust director 
status. A person may be a trust director even if the person is a beneficiary or settlor of the 
trust, though certain powers of a beneficiary and a settlor are excluded from the 
application of this act by Section 5. 
A serving trustee cannot be a "trust director" for the same reasons that under 
paragraph (5) a power over a trust cannot be a "power of direction" while the person that 
holds the power is serving as a trustee. Relations between multiple trustees are governed 
by the law of cotrusteeship as modified by Section 12. 
(10) Trustee. Following Uniform Trust Code § 103(20) (2004), paragraph (10) 
provides that the term "trustee" includes an original, additional, and successor trustee, and 
a cotrustee.
§2103.  Application; principal place of administration
1.  Application.  This Act applies to a trust, whenever created, that has its principal 
place of administration in this State, subject to the following rules:
A.  If the trust was created before January 1, 2020, this Act applies only to a decision 
or action occurring on or after January 1, 2020.
B.  If the principal place of administration of the trust is changed to this State on or 
after January 1, 2020, this Act applies only to a decision or action occurring on or 
after the date of the change.
2.  Principal place of administration.  Without precluding other means to establish 
a sufficient connection with the designated jurisdiction in a directed trust, terms of the 
trust that designate the principal place of administration of the trust are valid and 
controlling if:
A.  A trustee's principal place of business is located in or a trustee is a resident of the 
designated jurisdiction;
B.  A trust director's principal place of business is located in or a trust director is a 
resident of the designated jurisdiction; or
C.  All or part of the administration occurs in the designated jurisdiction.
Comment
(This is Section 3 of the Uniform Directed Trust Act (2017).)
Subsection (a). Subsection (a) addresses two matters. First, because powers and 
duties in a directed trust are matters of trust administration, see Restatement (Second) of 
Conflict of Laws § 271 cmt. a (1971), this subsection follows the prevailing conflict of 
laws rule by linking application of this act to the trust's principal place of administration. 
As with other matters of administration, the parties are protected against inconsistent 
court orders by the common law principle of "primary supervision." See id. § 267 cmt. e. 
Second, this subsection applies this act to all trusts administered in an enacting 
state regardless of whether the trust was in existence on the effective date of this act. 
However, under subsections (a)(1) and (2), this act applies only with respect to a decision 
or action occurring on or after the effective date or, if the trust's principal place of 
administration was changed to the enacting state after the effective date, only with respect 
to a decision or action occurring on or after that change. Because some of the standards of 
conduct prescribed by this act depart from Uniform Trust Code § 808 (2000) and 
Restatement (Third) of Trusts § 75 (2007), the drafting committee reasoned that the act 
should apply prospectively, following the model of Uniform Prudent Investor Act § 11 
(1994).     
Subsection (b). Subsection (b), which derives from Uniform Trust Code § 108(a) 
(2000), establishes a safe harbor for a settlor's designation of the principal place of 
administration for a directed trust. Such a designation is valid if (1) a trustee is located in 
the designated jurisdiction, (2) a trust director is located in the designated jurisdiction, or 
(3) at least some of the trust administration occurs in the designated jurisdiction. 
Subsections (b)(1) and (b)(3) reproduce without change the safe harbor prescribed by 
Uniform Trust Code § 108(a) (2000). Subsection (b)(2) expands the safe harbor of 
Section 108(a) to add the presence of a trust director as a sufficient connection with the 
designated jurisdiction. 
Other than the expansion in subsection (b)(2) of the Uniform Trust Code's safe 
harbor for a settlor's designation of a trust's principal place of administration, the drafting 
committee did not undertake to prescribe rules for ascertaining a trust's principal place of 
administration. In this respect, the drafting committee followed the Uniform Trust Code 
in "not attempt[ing] to further define principal place of administration." Uniform Trust 
Code § 108 cmt. Accordingly, for a directed trust in an enacting state, just as for all trusts 
in a Uniform Trust Code state, if the safe harbor of subsection (b) does not apply, the 
question of a trust's principal place of administration will be governed by the state's then-
existing law on principal place of administration. See, e.g., Restatement (Second) of 
Conflict of Laws §§ 271-72, 279 (1971).  
§2104.  Common law and principles of equity
The common law and principles of equity supplement this Act, except to the extent 
modified by this Act or law of this State other than this Act.
Comment
(This is Section 4 of the Uniform Directed Trust Act (2017).)
This section confirms that the common law and principles of equity remain 
applicable to a directed trust except to the extent modified by this act or other law. For 
example, other than the safe harbor under Section 3(b) for a term of a trust that designates 
the trust's principal place of administration, the law of an enacting state by which 
principal place of administration is determined would continue to apply to a directed 
trust. Provisions such as this one are familiar from other uniform acts. See, e.g., Uniform 
Powers of Appointment Act § 104 (2013); Uniform Trust Code § 106 (2000). The 
drafting committee contemplated that, by ordinary principles of statutory interpretation, 
other statutes pertaining to trusts such as the Uniform Trust Code (2000), Uniform Trust 
Decanting Act (2015), Uniform Principal and Income Act (1997), and Uniform Prudent 
Investor Act (1994), would continue to apply to a directed trust except as modified by this 
act. 
§2105.  Exclusions
1.  Power of appointment.  In this section, "power of appointment" means a power 
that enables a person acting in a nonfiduciary capacity to designate a recipient of an 
ownership interest in or another power of appointment over trust property.
2.  Exclusions.  This Act does not apply to a:
A.  Power of appointment;
B.  Power to appoint or remove a trustee or trust director;
C.  Power of a settlor over a trust to the extent the settlor has a power to revoke the 
trust;
D.  Power of a beneficiary over a trust to the extent the exercise or nonexercise of the 
power affects the beneficial interest of:
(1)  The beneficiary; or
(2)  Another beneficiary represented by the beneficiary under the Maine Uniform 
Trust Code, sections 301 to 305 with respect to the exercise or nonexercise of the 
power; or
E.  Power over a trust if:
(1)  The terms of the trust provide that the power is held in a nonfiduciary 
capacity; and
(2)  The power must be held in a nonfiduciary capacity to achieve the settlor's tax 
objectives under the United States Internal Revenue Code of 1986 and 
amendments to that Code as of December 31, 2017.
3.  Power of direction.  Unless the terms of a trust provide otherwise, a power 
granted to a person to designate a recipient of an ownership interest in or power of 
appointment over trust property that is exercisable while the person is not serving as a 
trustee is a power of appointment and not a power of direction.
Comment
(This is Section 5 of the Uniform Directed Trust Act (2017).)
This section excludes five categories of powers that the drafting committee 
concluded should not be covered by this act for reasons of policy, coverage by other law, 
or both. Questions regarding a power that falls within one of these exclusions, such as the 
duty of the holder of the power and the duty of a trustee or other person subject to the 
power, are governed by law other than this act. 
(1) Power of appointment. Subsection (b)(1) excludes a "power of appointment," 
which is defined by subsection (a) to mean "a power that enables a person acting in a 
nonfiduciary capacity to designate a recipient of an ownership interest in or another 
power of appointment over trust property." This definition of "power of appointment" is 
based on the definition in Uniform Powers of Appointment Act § 102(13) (2013). The 
definition is consistent with what Restatement (Third) of Property: Wills and Other 
Donative Transfers § 17.1 cmt. g (2011), refers to as a "discretionary" power of 
appointment, that is, one in which "the donee may exercise the power arbitrarily as long 
as the exercise is within the scope of the power."
Accordingly, if the terms of a trust purport to grant a person not serving as trustee 
a nonfiduciary power to direct distributions of trust property, under this act that power 
will be construed as a power of appointment governed by law other than this act, such as 
the Uniform Powers of Appointment Act (2013) and Restatement (Third) of Property: 
Wills and Other Donative Transfers §§ 17.1–23.1 (2011). 
The exclusion prescribed by subsection (b)(1) applies only to a nonfiduciary 
power of appointment. It does not apply to a fiduciary power of distribution. Thus, if the 
terms of a trust grant a person a fiduciary power to direct a distribution of trust property, 
and the power is exercisable while the person is not serving as trustee, then the power is a 
power of direction subject to this act.
To resolve doubt about whether a power over distribution is a power of 
appointment or a power of direction, subsection (c) prescribes a rule of construction 
under which a power over distribution is a power of appointment, and so is not held in a 
fiduciary capacity, unless the terms of the trust provide that the power is held in a 
fiduciary capacity. 
A power in a serving trustee to designate a recipient of an ownership interest in 
or a power of appointment over trust property can never be a power of direction, because 
a serving trustee can never be a trust director (see Sections 2(5) and (9)). Whether a 
power over distribution granted to a serving trustee is held in a fiduciary capacity 
(making it a fiduciary distributive power) or is instead a nonfiduciary power of 
appointment is governed by law other than this act, such as under Restatement (Third) of 
Trusts § 50 cmt. a (2003).  
(2) Power to appoint or remove. Subsection (b)(2) excludes "a power to appoint 
or remove a trustee or trust director." This exclusion addresses the compelling suggestion 
to the drafting committee that granting a person a power to appoint or remove a trustee is 
a common drafting practice that arose separately from the phenomenon of directed trusts. 
Under prevailing law, the only limit on the exercise of a power to appoint or remove a 
trustee is that it "must conform to any valid requirements or limitations imposed by the 
trust terms." Restatement (Third) of Trusts § 37 cmt. c (2003). If the terms of the trust do 
not impose any requirements or limitations on the power to remove, then "it is 
unnecessary for the holder to show cause" before exercising the power. Austin Wakeman 
Scott, William Franklin Fratcher & Mark L. Ascher, Scott and Ascher on Trusts § 11.10.2 
(5th ed. 2006). 
(3) Revocable trust. Subsection (b)(3) excludes a power of a settlor over a trust to 
the extent the settlor has a power to revoke the trust. The drafting committee intended that 
this exception would apply only to that portion of a trust over which the settlor has a 
power to revoke, that is, "to the extent" of the settlor's power to revoke. 
Because the settlor of a revocable trust may at any time revoke the trust and take 
back the trust property, under modern law, including Uniform Trust Code § 603(a) 
(2004), the trustee's duties run to the settlor rather than to the beneficiaries. The trustee 
must "comply with a direction of the settlor even though the direction is contrary to the 
terms of the trust or the trustee's normal fiduciary duties." Restatement (Third) of Trusts § 
74(1)(a)(i) (2007). 
Without the exclusion of this subsection, the definitions contained in paragraphs 
(3), (5), and (9) of Section 2 could have been read to transform a settlor's power over a 
revocable trust into fiduciary powers of a trust director, thus subjecting the settlor to the 
fiduciary duties of a trust director under Section 8 and the trustee to the modified 
fiduciary duties of a directed trustee under Sections 9 through 11. 
To the extent that a conservator or agent of the settlor may exercise the settlor's 
power to revoke, as under Uniform Trust Code § 602(e)–(f) (2001), subsection (b)(3) of 
this section would apply to the conservator or agent. A nonfiduciary power in a person 
other than the settlor to withdraw the trust property is a power of appointment that would 
fall within subsection (b)(1).
(4) Power of a beneficiary. Paragraph (4) excludes a power of a beneficiary to the 
extent that the exercise or nonexercise of the power affects (A) the beneficial interest of 
the beneficiary, or (B) the beneficial interest of another beneficiary who is represented by 
the beneficiary under virtual representation law. 
Subparagraph (A) follows from traditional law, under which "[a] power that is for 
the sole benefit of the person holding the power is not a fiduciary power." Restatement 
(Third) of Trusts § 75 cmt. d (2007). Thus, for example, a power in a beneficiary to 
release a trustee from a claim by the beneficiary is excluded from this act. To the extent 
the power affects another person, however, then it is not for the sole benefit of the person 
holding the power. Hence, a power over a trust held by a beneficiary may be a power of 
direction subject to this act if it affects the beneficial interest of another beneficiary. For 
example, a power in a beneficiary to release the trustee from a claim by another 
beneficiary is not excluded by this paragraph unless the power to bind the other 
beneficiary arises by reason of virtual representation. 
The same rules apply if the beneficiary's power is jointly held. Thus, for example, 
if the terms of a trust provide that a trustee may be released from liability by a majority of 
the beneficiaries, and a majority of the beneficiaries grants such a release, then those 
beneficiaries would be acting as trust directors to the extent the release bound other 
beneficiaries by reason of the power other than by virtual representation. This act would 
therefore reverse the result in Vena v. Vena, 899 N.E.2d 522 (Ill. App. 2008), in which 
the court refused to enforce a provision for release of a trustee by a majority of the 
beneficiaries on the grounds that the minority beneficiaries did not have recourse against 
the majority for an abusive release. Under this act, the minority beneficiaries would have 
recourse against the majority for breach of their fiduciary duty as trust directors. 
The carve-out for virtual representation in subparagraph (B) reflects the drafting 
committee's intent not to impose the fiduciary rules of this act on top of the law of virtual 
representation, which contains its own limits and safeguards. Without the exclusion of 
this subsection, the definitions contained in paragraphs (5) and (9) of Section 2 could 
have been read to transform a beneficiary who represented another beneficiary by virtual 
representation into a trust director.
By way of illustration, under Uniform Trust Code § 304 (2000), a beneficiary 
who suffers from an incapacitating case of Alzheimer's disease may sometimes be 
represented by another beneficiary in litigation against a trustee for breach of trust. In 
such a case, paragraph (4) of this section prevents the beneficiary who represents the 
beneficiary with Alzheimer's from being a trust director. Instead, the safeguards provided 
by the law of virtual representation will apply. Under § 304, for example, the 
representative beneficiary and the beneficiary with Alzheimer's disease must have "a 
substantially identical interest with respect to the particular question or dispute," and have 
"no conflict of interest" with each other. 
(5) The settlor's tax objectives. Subsection (b)(5) excludes a power if (A) the 
terms of the trust provide that the power is held in a nonfiduciary capacity, and (B) the 
power must be held in a nonfiduciary capacity to achieve the settlor's tax objectives under 
federal tax law. This exclusion is responsive to multiple suggestions to the drafting 
committee that certain powers held by a person other than a trustee must be nonfiduciary 
to achieve the settlor's federal tax objectives. 
For example, to ensure that a trust is a grantor trust for federal income tax 
purposes, a common practice is to include in the trust instrument a provision that allows 
the settlor or another person to substitute assets of the trust for assets of an equivalent 
value, exercisable in a nonfiduciary capacity. If the power to substitute assets is 
exercisable in a fiduciary capacity, the power will not cause the trust to be a grantor trust. 
Without the exception of subsection (b)(5), therefore, this common drafting practice 
might no longer ensure grantor trust status in a state that enacts this Act, and the tax status 
of existing trusts with such a provision would be thrown into disarray.
In light of the evolving nature of tax planning, the frequency of amendments to 
the tax law, and the potential for disagreement about which powers must be nonfiduciary 
to achieve the settlor's federal tax objectives, the drafting committee reasoned that a 
standard referring broadly to a settlor's tax objectives was preferable to a prescribed list of 
sections of the tax code. 
The drafting committee deliberately opted to reference tax objectives only under 
federal law, thereby excluding tax objectives under state law. The concern was that some 
states levy a tax on income in a trust if the trust has a fiduciary in the state. If this 
exclusion reached state tax law, then in such a state a trust director could argue that the 
director is not a fiduciary, because the settlor would not have wanted the trust to pay 
income tax. The consequence would be to negate fiduciary status for virtually all trust 
directors in those states. The purpose of this exception is to protect normal and customary 
estate planning techniques, not to allow circumvention of the central policy choice 
encoded in Section 8 that a trust director is generally subject to the same default and 
mandatory fiduciary duties as a similarly situated trustee. 
§2106.  Powers of trust director
1.  Power of direction.  Subject to section 2107, the terms of a trust may grant a 
power of direction to a trust director.
2.  Powers of trust director.  Unless the terms of a trust provide otherwise: 
A.  A trust director may exercise any further power appropriate to the exercise or 
nonexercise of a power of direction granted to the director under subsection 1; and
B.  Trust directors with joint powers shall act by majority decision.
Comment
(This is Section 6 of the Uniform Directed Trust Act (2017).)
Validating a trust director. Subsection (a) validates a provision for a trust 
director in the terms of a trust. This subsection does not provide any powers to a trust 
director by default. Nor does it specify the scope of a power of direction. The existence 
and scope of a power of direction must instead be specified by the terms of a trust. A trust 
director may be named by the terms of the trust, by a procedure prescribed by the terms 
of the trust, or in accordance with Section 16(6). 
Breadth of subsection (a). Without limiting the definition of a "power of 
direction" in Section 2(5), the drafting committee specifically contemplated that 
subsection (a) would validate terms of a trust that grant a power to a trust director to:

direct investments, including a power to:
o
acquire, dispose of, exchange, or retain an investment; 
o
make or take loans;
o
vote proxies for securities held in trust;
o
adopt a particular valuation of trust property or determine the 
frequency or methodology of valuation;
o
adjust between principal and income or convert to a unitrust;
o
manage a business held in the trust; or
o
select a custodian for trust assets;

modify, reform, terminate, or decant a trust;

direct a trustee's or another director's delegation of the trustee's or other 
director's powers;

change the principal place of administration, situs, or governing law of 
the trust;

ascertain the happening of an event that affects the administration of the 
trust; 

determine the capacity of a trustee, settlor, director, or beneficiary of the 
trust;

determine the compensation to be paid to a trustee or trust director; 

prosecute, defend, or join an action, claim, or judicial proceeding relating 
to the trust;

grant permission before a trustee or another director may exercise a 
power of the trustee or other director; or

release a trustee or another trust director from liability for an action 
proposed or previously taken by the trustee or other director.
This subsection does not, however, override the background law that regulates 
the formation of a trust, such as the requirements that a trust be lawful, not contrary to 
public policy, and possible to achieve. See, e.g., Uniform Trust Code § 404 (2000); 
Restatement (Third) of Trusts §§ 29–30 (2003).
Pet and other noncharitable purpose trust enforcers. Statutes in every state 
validate a trust for a pet animal and certain other noncharitable purposes. Following 
Uniform Probate Code § 2-907(c)(4) (1993) and Uniform Trust Code §§ 408(b) and 
409(2) (2000), most of these statutes authorize enforcement of the trust by a person 
named in the terms of the trust. In a state that enacts this act, such a person would be a 
trust director. 
Exclusions. Like the other provisions of this act, this section does not apply to 
matters that are excluded by Section 5. Thus, because Sections 5(b)(1)-(2) exclude a 
"power of appointment," and a "power to appoint or remove a trustee or trust director," 
subsection 6(a) does not authorize the granting of such powers. Instead, such a power is 
governed by law other than this act.
Subsection (b). Subsection (b) prescribes two rules of construction that apply 
unless the terms of a trust provide otherwise. 
(1) Further appropriate powers. Subsection (b)(1) prescribes a default rule under 
which a trust director may exercise any "further" power that is "appropriate" to the 
director's exercise of the director's express powers granted by the terms of the trust under 
subsection (a). The term "appropriate" is drawn from Uniform Trust Code § 815(a)(2)(B) 
(2000). Appropriateness should be judged in relation to the purpose for which the power 
was granted and the function being carried out by the director. Examples of further 
powers that might be appropriate include a power to: (1) incur reasonable costs and direct 
indemnification for those costs; (2) make a report or accounting to a beneficiary or other 
interested party; (3) direct a trustee to issue a certification of trust under Uniform Trust 
Code § 1013 (2000); (4) prosecute, defend, or join an action, claim, or judicial proceeding 
relating to a trust; or (5) employ a professional to assist or advise the director in the 
exercise or nonexercise of the director's powers. 
Delegation by trust director. In some circumstances, it may be appropriate under 
subsection (b)(1) for a trust director to exercise a further power to delegate the director's 
powers, much as it may sometimes be appropriate for a trustee to delegate its powers. 
Under Section 8, a trust director is subject to the same fiduciary duty regarding delegation 
as a trustee in a like position and under similar circumstances. In most states, therefore, a 
trust director would be required to exercise reasonable care, skill, and caution in 
selecting, instructing, and monitoring an agent, and a director that did so would not be 
liable for the action of the agent. In accordance with prevailing law governing delegation 
by a trustee, see, e.g., Uniform Trust Code § 807 (2000); Uniform Prudent Investor Act § 
(1994); Restatement (Third) of Trusts § 80 (2007), the drafting committee contemplated 
that in performing a function delegated by a trust director, the agent would owe a duty to 
exercise reasonable care. 
Trust director's standing to sue. Subsection (b)(1) addresses the situation that 
arose in Schwartz v. Wellin, No. 2:13-CV-3595-DCN, 2014 WL 1572767 (D.S.C. Apr. 
17, 2014). The court held that a trust director, which the terms of the trust referred to as a 
"trust protector," lacked standing to bring a lawsuit under Rule 17(a)(1) of the Federal 
Rules of Civil Procedure, because the director was neither a real party in interest nor a 
party that could pursue a claim if not a real party in interest. 
In some circumstances, subsection (b)(1) may produce a different outcome. Rule 
17(a)(1) allows a party to participate in litigation even if the party is not a real party in 
interest if the party is "authorized by statute." Subsection (b)(1) supplies the requisite 
statutory authorization if participating in a lawsuit would be "appropriate" to a director's 
exercise or nonexercise of a power granted by the terms of the trust under subsection (a). 
It would normally be "appropriate," for example, for a trust director to bring an action 
against a directed trustee if the trustee refused to comply with a director's exercise of a 
power of direction. The requisite statutory authorization might also come from subsection 
(a) if the terms of the trust expressly confer a power of litigation on a director.  
(2) Majority decision. Subsection (b)(2) provides a default rule of majority action 
for multiple trust directors with "joint powers," such as a three-person committee with a 
power of direction over investment or distribution. Majority action is the prevailing 
default for cotrustees. See Uniform Trust Code § 703(a) (2000); Restatement (Third) of 
Trusts § 39 (2003). In the event of a deadlock among trust directors with joint powers, by 
analogy to a deadlock among cotrustees, a court could "direct exercise of the [joint] 
power or take other action to break the deadlock." Restatement (Third) of Trusts § 39 
cmt. e (2003). 
The duty and liability of a trust director is governed by Section 8, which applies 
the fiduciary duty of trusteeship to a trust director. Thus, under Section 8(a)(1)(B), a trust 
director that holds a power of direction jointly with a trustee or another trust director 
would be subject to the fiduciary duty of a cotrustee. 
§2107.  Limitations on trust director
A trust director is 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 or further 
power under section 2106, subsection 2, paragraph A regarding:
1.  Medicaid payback provision.  A payback provision in the terms of a trust 
necessary to comply with the reimbursement requirements of Medicaid law in Section 
1917 of the federal Social Security Act, 42 United States Code, Section 1396p(d)(4)(A); 
and
2.  Charitable interest.  A charitable interest in the trust, including notice regarding 
the interest to the Attorney General.
Comment
(This is Section 7 of the Uniform Directed Trust Act (2017).)
This section applies to a trust director the same rules that apply to a trustee in two 
specific situations in which many states have particular regulatory interests. The first, in 
paragraph (1), concerns a payback provision necessary to comply with the reimbursement 
requirements of Medicaid law in a trust for a beneficiary with a disability. The second, in 
paragraph (2), concerns a charitable interest in a trust. 
In both circumstances, this section imposes all the same rules that would apply to 
a trustee in a like position and under similar circumstances. For example, many states 
require a trustee to give notice to the Attorney General before taking certain actions with 
respect to a charitable interest in a trust. Some states also disempower a trustee from 
taking certain actions with respect to a payback provision in a trust meant to comply with 
the reimbursement requirements of Medicaid law.  
The drafting committee referenced "rules" rather than "duties" in order to make 
clear that this section absorbs every provision of state law in the areas specified by 
paragraphs (1) and (2), regardless of whether the law in these areas is classified as a duty, 
a limit on a trustee's powers, a regulation, or otherwise. In referencing rules, rather than 
duties, this section stands in contrast to Section 8(a) and the other sections of this act that 
apply a trustee's duties to a trust director. Section 8(a) and these other sections absorb 
only duties of a fiduciary nature, whereas this section absorbs all rules, whether fiduciary, 
regulatory, or otherwise. Also unlike Section 8(a), this section applies only to two limited 
subject areas, rather than to the whole range of a director's possible conduct.
§2108.  Duty and liability of trust director
1.  Duties and liabilities.  Subject to subsection 2, with respect to a power of 
direction or further power under section 2106, subsection 2, paragraph A:
A.  A trust director has the same fiduciary duty and liability in the exercise or 
nonexercise of the power:
(1)  If the power is held individually, as a sole trustee in a like position and under 
similar circumstances; or
(2)  If the power is held jointly with a trustee or another trust director, as a 
cotrustee in a like position and under similar circumstances; and
B.  The terms of the trust may vary a trust director's duty or liability to the same 
extent the terms of the trust could vary the duty or liability of a trustee in a like 
position and under similar circumstances.
2.  Health care provider.  Unless the terms of a trust provide otherwise, if a trust 
director is licensed, certified or otherwise authorized or permitted by law other than this 
Act to provide health care in the ordinary course of the director's business or practice of a 
profession, to the extent the director acts in that capacity, the director has no duty or 
liability under this Act.
3.  Additional duties and liabilities.  The terms of a trust may impose a duty or 
liability on a trust director in addition to the duties and liabilities under this section.
Comment
(This is Section 8 of the Uniform Directed Trust Act (2017).)
Duty and liability of a trust director. This section addresses the duty and liability 
of a trust director. It should be read in conjunction with Section 10, which governs 
information sharing among directed trustees and trust directors, and Section 11, which 
eliminates certain duties to monitor, inform, or give advice. The drafting committee 
contemplated that this section, along with Sections 10 and 11, would prescribe the 
mandatory minimum fiduciary duties of a trust director, displacing any contrary 
mandatory minimum such as under Uniform Trust Code § 105 (2005).
Subsection (a). Subsection (a) imposes the same fiduciary duties on a trust 
director that would apply to a trustee in a like position and under similar circumstances. A 
trust director with a power to make or direct investments, for example, has the same 
duties that would apply to a trustee with the same power, including a duty to act 
prudently, in the sole interest of the beneficiaries, and impartially with due regard for the 
respective interests of the beneficiaries. See, e.g., Restatement (Third) of Trusts §§ 77–79, 
90–92 (2007). The theory behind subsection (a) is that if a trust director has a power of 
direction, the director is the most appropriate person to bear the duty associated with the 
exercise or nonexercise of that power. Put differently, in a directed trust, a trust director 
functions much like a trustee in a non-directed trust, and thus should have the same duties 
as a trustee. 
Accordingly, subsection (a)(1) sets the default duties of a trust director by 
absorbing the default duties that would ordinarily apply to a trustee in a like position and 
under similar circumstances. Subsection (a)(2) sets the mandatory minimum duties of a 
trust director by absorbing the mandatory minimum duties that the terms of a trust cannot 
vary for a trustee in a like position and under similar circumstances. The default and 
mandatory rules applicable to a trustee include those prescribed by the other provisions of 
this act.
In making a trust director a fiduciary, subsection (a) follows the great majority of 
the existing state directed trust statutes. Subsection (a) is more specific than many state 
statutes, however, as the existing statutes tend to say only that a trust director is a 
"fiduciary," without specifying which kind of fiduciary or which fiduciary duties apply. 
Subsection (a) provides greater clarity by specifically absorbing the fiduciary duty of a 
similarly situated trustee. 
Absorption of existing trust fiduciary law. Subsection (a) operates by absorbing 
existing state law rather than by inventing a new body of law. Absorbing existing state 
law in this manner offers several advantages. First, it avoids the need to spell out the 
entirety of trust fiduciary law. That is, it avoids the need to replicate something like 
Article 8 of the Uniform Trust Code for trust directors. Second, absorbing the trust 
fiduciary law of each enacting state accommodates diversity across the states in the 
particulars of a trustee's default and mandatory fiduciary duties, such as the duties to 
diversify and to give information to the beneficiaries, both of which have become 
increasingly differentiated across the states. Third, absorption allows for changes to the 
law of a trustee's fiduciary duties to be absorbed automatically into the duties of a trust 
director without need for periodic conforming revisions to this act.
Varied circumstances of trust directors. In applying the law of trustee fiduciary 
duties to a trust director, a court must make use of the flexibility built into fiduciary law. 
Courts have long applied the duties of loyalty and prudence across a wide array of 
circumstances, including many different kinds of trusts as well as other fiduciary 
relationships, such as corporations and agencies. Fiduciary principles are thus amenable 
to application in a context-specific manner that is sensitive to the particular circumstances 
and structure of each directed trust. In assessing the actions of a director that holds a 
power to modify a trust, for example, a court should apply the standards of loyalty and 
prudence in a manner that is appropriate to the particular context, including the trust's 
terms and purposes and the director's particular powers. 
The trust director's duty of disclosure. Under subsection (a), a trust director is 
subject to the same duties of disclosure as a trustee in a like position and under similar 
circumstances. For example, if a trust director intends to direct a nonroutine transaction, 
to change "investment … strategies," or to take "significant actions … involving hard-to-
value assets or special sensitivity to beneficiaries," the director is under a duty of 
affirmative advance disclosure, just like a trustee. Restatement (Third) of Trusts § 82 cmt. 
d (2007). A trust director's disclosure duties are limited, however, by Section 11, which 
eliminates certain duties to monitor, inform, or give advice.
Sole versus joint powers. Under subsection (a), a trust director has the same 
fiduciary duties as a sole trustee when a power of direction is held individually and the 
same fiduciary duties as a cotrustee when a power of direction is held jointly. A trust 
director that individually holds a power to amend the trust, for example, does not have the 
duties of a cotrustee to monitor the actions of the trustee concerning investments or the 
actions of another trust director concerning the determination of a beneficiary's capacity. 
Subject to Section 11, a trust director that holds a power of direction jointly with 
a trustee or another trust director, by contrast, has the duties of a cotrustee regarding the 
actions of that trustee or other trust director that are within the scope of the jointly held 
power. Thus, a trust director that jointly exercises a power to direct investments with 
other trust directors has the same fiduciary duties as a cotrustee regarding its own actions 
and the actions of the other directors with respect to the power. Under subsection (a)(2), a 
settlor may vary the duty and liability of a trust director that holds a power of direction 
jointly to the same extent the settlor could vary the duty and liability of a cotrustee under 
Section 12 or otherwise.
Springing powers without a duty to monitor. The drafting committee 
contemplated that a settlor could construct a trust director's power to be springing such 
that the director would not be under a continuous obligation to monitor the administration 
of the trust. For example, a settlor could grant a trust director a power to direct a 
distribution, but only if the director was requested to do so by a beneficiary. A director 
holding such a power would not be under a duty to act unless requested to do so by a 
beneficiary. Moreover, because under subsection (a)(2) a settlor can vary the fiduciary 
duties of a trust director to the same extent that the settlor could vary the fiduciary duties 
of a trustee, under Uniform Trust Code § 105(b)(2) (2004) the terms of a trust could 
waive all of the director's otherwise applicable duties other than the duty "to act in good 
faith and in accordance with the terms and purposes of the trust and the interests of the 
beneficiaries." A director with a power to direct a distribution upon a beneficiary's 
request, for example, would be subject to this mandatory duty when it responds to a 
beneficiary's request.  
Extended discretion. Under subsection (a), if the terms of a trust give a trust 
director extended discretion, such as "sole," "absolute," or "uncontrolled" discretion, 
those terms would have the same effect on the duty and liability of the director as they 
would have for a trustee. Under prevailing law, a trustee with extended discretion may 
not "act in bad faith or for some purpose or motive other than to accomplish the purposes 
of the discretionary power." Restatement (Third) of Trusts § 50 cmt. c (2003); see also 
Uniform Trust Code § 814(a) (2004). 
Exculpation or exoneration. A trust director is likewise subject to the same rules 
as a trustee with regard to an exculpation or exoneration clause. Under prevailing law, 
such as Uniform Trust Code § 1008 (2000) and Restatement (Third) of Trusts § 96 
(2012), an exculpation or exoneration clause cannot protect a trustee against liability for 
acting in bad faith or with reckless indifference. Under subsection (a)(2) of this section, 
the same rules would apply to an exculpation or exoneration clause for a trust director. 
Thus, if the terms of a trust provide that a director can never be liable to a beneficiary, 
then the trust director would have the same liability as a trustee would have under a 
similar exculpatory clause.
Directed director. The terms of a trust may provide that a trust director has a 
power over a trust that requires another director to comply with the director's exercise or 
nonexercise of the power. In other words, a director may have the power to direct another 
director. In such a trust, subsection (a)(1) would absorb for the directed director the same 
fiduciary duties that would apply to a directed trustee. A directed director would thus be 
subject to the willful misconduct standard that Section 9 applies to a directed trustee. 
Under subsection (a)(2), the terms of a trust may vary the duty of a directed director to 
the same extent they could vary the duty of a directed trustee.
Subsection (b)—health-care professionals. Subsection (b) refers to a trust director 
who is "licensed, certified, or otherwise authorized or permitted by law … to provide 
health care in the ordinary course of the director's business or practice of a profession." 
This phrasing is based on the definition of "health-care provider" in Uniform Health-Care 
Decisions Act § 1(8) (1993). To the extent that a trust director acts in the director's 
business or practice of a profession to provide health care, the director is relieved from 
duty and liability under this act unless the terms of the trust provide otherwise. 
This subsection addresses the concern that a health-care professional might refuse 
appointment as a trust director if such service would expose the professional to fiduciary 
duty under this act. For example, the terms of a trust might call for a health-care 
professional to determine the capacity or sobriety of a beneficiary or the capacity of a 
settlor. In making such a determination, under subsection (b) the health-care professional 
would not be subject to duty or liability under this act. 
Although the professional would not be subject to duty or liability under this act, 
the professional would remain subject to any rules and regulations otherwise applicable to 
the professional, such as the rules of medical ethics. The professional would also be 
subject to the other provisions of this act that do not create a duty or liability, such as the 
rules of construction prescribed by Sections 6(b) and 16. Moreover, a trustee subject to a 
direction by a health-care professional under subsection (b) of this section is still subject 
to the duties under Section 9 to take reasonable action to comply with the professional's 
direction and to avoid willful misconduct in doing so. 
Subsection (c)—no ceiling on duties. Subsection (c) confirms that the duties 
under this section are defaults and minimums, not ceilings. The terms of a trust may 
impose further duties in addition to those prescribed by this section. 
§2109.  Duty and liability of directed trustee
1.  Reasonable action to comply.  Subject to subsection 2, a directed trustee shall 
take reasonable action to comply with a trust director's exercise or nonexercise of a power 
of direction or further power under section 2106, subsection 2, paragraph A, and the 
trustee is not liable for the action.
2.  No compliance if willful misconduct.  A directed trustee may not comply with a 
trust director's exercise or nonexercise of a power of direction or further power under 
section 2106, subsection 2, paragraph A to the extent that by complying the trustee would 
engage in willful misconduct.
3.  Release from liability not effective.  An exercise of a power of direction under 
which a trust director may release a trustee or another trust director from liability for 
breach of trust is not effective if:
A.  The breach involved the trustee's or other director's willful misconduct;
B.  The release was induced by improper conduct of the trustee or other director in 
procuring the release; or
C.  At the time of the release, the director did not know the material facts relating to 
the breach. 
4.  Petition court for instructions.  A directed trustee that has reasonable doubt 
about its duty under this section may petition the Probate Court or the Superior Court for 
instructions.
5.  Additional duty or liability.  The terms of a trust may impose a duty or liability 
on a directed trustee in addition to the duties and liabilities under this section.
Comment
(This is Section 9 of the Uniform Directed Trust Act (2017).)
Duties of a directed trustee. This section addresses the duty and liability of a 
directed trustee. It should be read in conjunction with Section 10, which governs 
information sharing among directed trustees and trust directors, and Section 11, which 
eliminates certain duties to monitor, inform, or advise. The drafting committee 
contemplated that this section, along with Sections 10 and 11, would prescribe the 
mandatory minimum fiduciary duties of a directed trustee, displacing any contrary 
mandatory minimum such as under Uniform Trust Code § 105 (2005).
Subsection (a)—duty to take reasonable action; nonliability other than under 
subsection (b). Subject to subsection (b), subsection (a) requires a directed trustee to take 
reasonable action to comply with a trust director's exercise or nonexercise of the director's 
power of direction or further power under Section 6(b)(1) and provides that the trustee is 
not liable for so acting. 
The duty of a trustee in subsection (a) to take reasonable action depends on 
context. A power of direction under which a trust director may give a trustee an express 
direction will require the trustee to comply by following the direction. A power that 
requires a trustee to obtain permission from a trust director before acting imposes a duty 
on the trustee to obtain the required permission. A power that allows a director to amend 
the trust imposes a duty on the trustee to take reasonable action to facilitate the 
amendment and then comply with its terms. The duty prescribed by subsection (a) is to 
take reasonable action to comply with whatever the terms of the trust require of a trustee 
in connection with a trust director's exercise or nonexercise of the director's power of 
direction or further power under Section 6(b)(1). 
A trustee's duty to take reasonable action is limited by the scope of the trust 
director's power of direction. A directed trustee should not comply with a direction that is 
outside of the director's power of direction and beyond the director's further powers under 
Section 6(b)(1). To do so would violate the trustee's duty under subsection (a) and the 
trustee's background duty to act in accordance with the terms of the trust. See, e.g., 
Uniform Trust Code § 105(b)(2) (amended 2005) (making mandatory "the duty of a 
trustee to act … in accordance with the terms … of the trust"); Restatement (Third) of 
Trusts § 76 (2007) ("The trustee has a duty to administer the trust … in accordance with 
the terms of the trust."). For example, an attempt by a director to exercise a power of 
direction in a form contrary to that required by the terms of the trust, such as an oral 
direction if the terms of the trust require a writing, is not within the trust director's power.
Subsection (a) requires a trustee to act reasonably as it carries out the acts 
necessary to comply with a trust director's exercise or nonexercise of the director's 
powers. If a trust director with a power to direct investments directs the trustee to 
purchase a particular security, for example, the trustee must take care to ensure that the 
security is purchased within a reasonable time and at reasonable cost and must refrain 
from self-dealing and conflicts of interest in doing so. 
The duty to take reasonable action under subsection (a) does not, however, 
impose a duty to ensure that the substance of the direction is reasonable. To the contrary, 
subject to subsection (b), a trustee that takes reasonable action to comply with a power of 
direction is not liable for so acting even if the substance of the direction is unreasonable. 
In other words, subject to the willful misconduct rule of subsection (b), a trustee is liable 
only for its own breach of trust in executing a direction, and not for the director's breach 
of trust in giving the direction. Returning to the example of a direction to purchase a 
security, the trustee is not required to assess whether the purchase of the security would 
be prudent in relation to the trust's investment portfolio; the trustee is only required to 
execute the purchase reasonably.
Powers jointly held with a trust director. A trustee may hold a power of direction 
jointly with a trust director. For example, the terms of a trust may confer a power to 
determine the capacity of a beneficiary upon a committee of people, and the committee 
may include both the trustee and the beneficiary's son, who is a trust director. When a 
trustee holds a power jointly with a trust director, the trustee continues to have the normal 
duties of a trustee regarding its own exercise or nonexercise of the joint power. 
Subsection (a), in other words, does not relieve the trustee from the trustee's normal 
duties as to powers that belong directly to the trustee, including powers held jointly with a 
trust director. In deciding how to vote as a member of the committee to determine the 
beneficiary's capacity, for example, the trustee would be subject to the same duties as if it 
held its power jointly with another trustee instead of with another trust director. 
A trustee's participation in joint decisionmaking with a trust director, however, 
must be distinguished from the trustee's execution of those joint decisions. Although the 
trustee is subject to the normal fiduciary duties of trusteeship in making a decision jointly 
with a trust director, the trustee is subject to the reduced duty of subsections (a) and (b) in 
executing the decision. Returning to the example of a committee including a trustee with 
power to determine a beneficiary's capacity, the trustee has its normal fiduciary duties in 
deciding how to cast its vote about whether the beneficiary lacks capacity. But the trustee 
has only the duties prescribed by subsections (a) and (b) when the trustee takes action to 
comply with the decision of the committee. 
Powers to veto or approve. The terms of a trust may give a trust director a power 
to veto or approve the actions of a trustee. A trustee, for example, may have the power to 
invest trust property, subject to the power of a trust director to review and override the 
trustee's decision. A trustee that operates under this kind of veto or approval power has 
the normal duties of a trustee regarding the trustee's exercise of its own powers, but has 
only the duties of a directed trustee regarding the trust director's exercise of its power to 
veto or approve. Thus, the trustee would be subject to the normal duty of prudence in 
deciding which investments to propose to a director, but then would be subject only to the 
willful misconduct rule of subsection (b) in choosing whether to comply with the 
director's veto or disapproval of the proposed investments.  
Subsection (b)—willful misconduct. Subsection (b) provides an exception to the 
duty of compliance prescribed by subsection (a). Under subsection (b), a trustee must not 
comply with a trust director's exercise or nonexercise of a power of direction or a further 
power under Section 6(b)(1) to the extent that by complying the trustee would engage in 
"willful misconduct." 
The willful misconduct standard in subsection (b) is to be distinguished from the 
duty to take reasonable action in subsection (a). The reasonable action rule of subsection 
(a) applies to the manner by which a trustee complies with a power of direction. The 
willful misconduct standard of subsection (b) applies to the decision of whether to 
comply with a power of direction.
The willful misconduct standard in subsection (b) is a mandatory minimum. The 
terms of a trust may not reduce a trustee's duty below the standard of willful misconduct. 
Terms of a trust that attempt to give a trustee no duty or to indicate that a trustee is not a 
fiduciary or is an "excluded fiduciary" or other such language are not enforceable under 
subsection (b). Instead, such provisions should be construed to provide for the willful 
misconduct standard of subsection (b).
The drafting committee settled upon the "willful misconduct" standard after a 
review of the existing directed trust statutes. Roughly speaking, the existing statutes fall 
into two groups. In one group, which constitutes a majority, are the statutes that provide 
that a directed trustee has no duty or liability for complying with an exercise of a power 
of direction. This group includes Alaska, New Hampshire, Nevada, and South Dakota. 
The policy rationale for these no duty statutes is that duty should follow power. If 
a director has the exclusive authority to exercise a power of direction, then the director 
should be the exclusive bearer of fiduciary duty in the exercise or nonexercise of the 
power. Placing the exclusive duty on a director does not diminish the total duty owed to a 
beneficiary, because a settlor of a directed trust could have chosen to make the trust 
director the sole trustee instead. Thus, on greater-includes-the-lesser reasoning, a settlor 
who could have named a trust director to serve instead as a trustee should also be able to 
give the trust director the duties of the trustee. Under the no duty statutes, a beneficiary's 
only recourse for misconduct by the trust director is an action against the director for 
breach of the director's fiduciary duty to the beneficiary.
In the other group of statutes, which includes Delaware, Illinois, Texas, and 
Virginia, a directed trustee is not liable for complying with a direction of a trust director 
unless by so doing the directed trustee would personally engage in "willful" or 
"intentional" misconduct. The policy rationale for these statutes is that, because a trustee 
stands at the center of a trust, the trustee must bear at least some duty even if the trustee is 
acting under the direction of a director. Although the settlor could have made the trust 
director the sole trustee, the settlor did not actually do so—and under traditional 
understandings of trust law, a trustee must always be accountable to a beneficiary in some 
way. See, e.g., Restatement (Third) of Trusts § 96 cmt. c (2012) ("Notwithstanding the 
breadth of language in a trust provision relieving a trustee from liability for breach of 
trust, for reasons of policy trust fiduciary law imposes limitations on the types and degree 
of misconduct for which the trustee can be excused from liability."). 
The states in the second group also recognize, however, that to facilitate the 
settlor's intent that the trust director rather than the directed trustee be the primary or even 
sole decisionmaker, it is appropriate to reduce the trustee's duty below the usual level 
with respect to a matter subject to a power of direction. Accordingly, under these statutes 
a beneficiary's main recourse for misconduct by the trust director is an action against the 
director for breach of the director's fiduciary duty to the beneficiary. The beneficiary also 
has recourse against the trustee, but only if the trustee's compliance with the director's 
exercise or nonexercise of the director's powers amounted to "willful misconduct" by the 
trustee. Relative to a non-directed trust, this second approach has the effect of increasing 
the total fiduciary duties owed to a beneficiary. All of the usual duties of trusteeship are 
preserved in the trust director, but in addition the directed trustee has a duty to avoid 
willful misconduct.  
After extensive deliberation and debate, the drafting committee opted to follow 
the second group of statutes on the grounds that this model is more consistent with 
traditional fiduciary policy. The popularity of directed trusts in Delaware, which also 
adopts the willful misconduct standard, establishes that a directed trust regime that 
preserves a willful misconduct safeguard is workable and that a total elimination of duty 
in a directed trustee is unnecessary to satisfy the needs of directed trust practice.  
The willful misconduct standard prescribed by this subsection changes the policy 
of Uniform Trust Code § 808 (2000), which is similar in substance to Restatement 
(Third) of Trusts § 75 (2007). Section 808(b) provides:
If the terms of a trust confer upon a person other than the settlor of a 
revocable trust power to direct certain actions of the trustee, the trustee 
shall act in accordance with an exercise of the power unless the 
attempted exercise is manifestly contrary to the terms of the trust or the 
trustee knows the attempted exercise would constitute a serious breach of 
a fiduciary duty that the person holding the power owes to the 
beneficiaries of the trust.
In deciding to adopt a different standard, the drafting committee was deeply influenced 
by the fact that a growing number of states that had previously adopted Section 808 have 
since abandoned or modified it to follow one of the two other models discussed above. 
The drafting committee was also strongly influenced by the fact that a review of every 
existing specialized state statute on directed trusts showed that no state that has legislated 
specifically on the issue of directed trustee fiduciary duties has chosen to follow Section 
808.
Subsection (c)—release by trust director. The terms of a trust may empower a 
trust director to release a trustee or another trust director from liability for breach of trust. 
If the director grants such a release, the trustee or other director is not liable to the extent 
of the release. The terms of a trust may authorize such a release to be given at any time, 
whether before or after the trustee or other director acts. The precise scope of a power of 
release and the manner of its exercise depend on the terms of the trust.
Although a settlor has wide latitude in designing a power of direction, subsection 
(c) prescribes three mandatory safeguards that limit a director's power to release a trustee 
or other director from liability. First, consistent with the policy of subsection (b), a trustee 
or other director cannot be released for a breach that involves the trustee's or the other 
director's own willful misconduct. Second, consistent with prevailing law governing a 
release of a trustee by a beneficiary, a release by a trust director is not enforceable if it 
was procured by the improper conduct of the trustee or other director. Third, again 
consistent with prevailing law governing a release of a trustee by a beneficiary, a release 
by a trust director is not enforceable if at the time of the release the director did not know 
the material facts relating to the breach. The drafting committee based the second and 
third of these safeguards on Uniform Trust Code § 1009 (2001), which is similar in 
substance to Restatement (Third) of Trusts § 97 (2012).
Subsection (d)—petition for instructions. Subsection (d) confirms that, in 
accordance with existing law, a directed trustee that has reasonable doubt about its duty 
under this section may petition the court for instructions. See, e.g., Restatement (Third) of 
Trusts § 71 (2007) ("A trustee or beneficiary may apply to an appropriate court for 
instructions regarding the administration or distribution of the trust if there is reasonable 
doubt about the powers or duties of the trusteeship or about the proper interpretation of 
the trust provisions."). The safe harbor of this subsection is permissive rather than 
mandatory. Though a trustee may satisfy its duties by petitioning for instructions, this 
subsection does not require a trustee to petition. 
Subsection (e)—no ceiling on duties. Subsection (e) confirms that the duties 
prescribed by this section are defaults and minimums, not ceilings. The terms of a trust 
may impose further duties in addition to those prescribed by this section.
§2110.  Duty to provide information to trust director or trustee
1.  Trustee's duty to provide information.  Subject to section 2111, a trustee shall 
provide information to a trust director to the extent the information is reasonably related 
to both:
A.  The powers or duties of the trustee; and
B.  The powers or duties of the director.
2.  Trust director's duty to provide information.  Subject to section 2111, a trust 
director shall provide information to a trustee or another trust director to the extent the 
information is reasonably related to both:
A.  The powers or duties of the director; and
B.  The powers or duties of the trustee or other director.
3.  Trustee acts in reliance.  A trustee that acts in reliance on information provided 
by a trust director is not liable for a breach of trust to the extent the breach resulted from 
the reliance, unless by so acting the trustee engages in willful misconduct.
4.  Trust director acts in reliance.  A trust director that acts in reliance on 
information provided by a trustee or another trust director is not liable for a breach of 
trust to the extent the breach resulted from the reliance, unless by so acting the trust 
director engages in willful misconduct. 
Comment
(This is Section 10 of the Uniform Directed Trust Act (2017).)
Subsections (a) and (b)—Duty to provide information. This section imposes 
duties on trustees and trust directors to provide information to each other. Subsection (a) 
imposes this duty on a directed trustee, and subsection (b) imposes this duty on a trust 
director. The drafting committee contemplated that the duties created by this section 
would provide trustees and trust directors with sufficient information to fulfill their 
obligations under trust law as well as other law, including banking, securities, and tax 
law.
Disclosure to beneficiaries. This section governs disclosure of information to 
trustees and trust directors. The duty of a trust director to disclose information to a 
beneficiary is governed by Section 8, which prescribes the fiduciary duties of a trust 
director, subject to Section 11. The duty of a trustee to disclose information to a 
beneficiary is governed by the background law of an enacting state under Section 4 as 
modified by Section 11, which limits a directed trustee's duty to inform a beneficiary 
about the actions of a trust director.
Reasonableness. This section relies heavily on the concept of reasonableness. 
Information must be disclosed only if it is reasonably related both to the powers or duties 
of the person making the disclosure and to the powers or duties of the person receiving 
the disclosure. The information must be reasonably related to the powers or duties of the 
person making the disclosure, because otherwise that person cannot be expected to 
possess the information. The information must also be reasonably related to the powers or 
duties of the person receiving the disclosure, because otherwise that person would not 
need the information. Examples of matters that might require disclosure under this 
section include asset valuations, modifications to the terms of a trust, changes to 
investment policy or strategy, distributions, changes in accounting procedure or 
valuations, and removal or appointment of trustees and trust directors.
Both an affirmative and a responsive duty to inform. This section imposes an 
affirmative duty to provide information (even in the absence of a request for that 
information) as well as a responsive duty to reply to requests for information. For 
example, if a trust director exercises a power to modify the terms of a trust, the director 
would have an affirmative duty to inform the trustees and other trust directors whose 
powers or duties are reasonably related to the amendment whether or not the trustees or 
other trust directors inquired about it. Similarly, the director would have a responsive 
duty to provide information about the amendment upon a request by a trustee or another 
trust director whose powers or duties were reasonably related to the amendment.
Interaction with Section 11. The duties of a trustee (in subsection (a)) and of a 
trust director (in subsection (b)) to disclose information are subject to the limitations of 
Section 11. Thus, although a trustee has a duty under this section to disclose information 
that is related to both the powers or duties of the trustee and the powers or duties of the 
director, a trustee does not have a duty to inform or give advice to the trust director 
concerning instances in which the trustee would have exercised the director's powers 
differently. The same is true for a trust director.
Shelton v. Tamposi. In Shelton v. Tamposi, 62 A.3d 741 (N.H. 2013), the terms 
of the trust left distribution in the hands of the trustee, but shifted power over investment 
to a trust director (the "investment director"). As a result, the trustee could not liquidate 
investments to raise the cash necessary to fund a distribution to one of the beneficiaries. 
Under subsection (b), the trust director would have been under a duty to give the trustee 
information about the effects of the director's investment program on the trust's cash 
position, and the trustee would have been under a duty to give the director information 
about the cash requirements of the trustee's distribution program. Moreover, in making 
and implementing the investment program, under Section 8(a) the trust director would be 
subject to the same duties as a similarly situated trustee, just as the trustee would be 
subject to the duties of a trustee in making and implementing the distribution program.   
Subsections (c) and (d)—Subsection (c) provides a safe harbor for a trustee that 
acts in reliance on information provided by a trust director. Subsection (d) provides a 
similar safe harbor for a trust director for information provided by a trustee or other trust 
director. Under both subsections, the safe harbor only applies if the trustee or trust 
director that acts in reliance on the information is not engaged in willful misconduct. For 
example, subsection (c) protects a trustee if the trustee acts in reliance on a trust director's 
valuation of an asset, unless by accepting the valuation the trustee would engage in 
willful misconduct. As in Section 9, the rationale for the safe harbor and willful 
misconduct limit is to implement the settlor's division of labor subject to a mandatory 
fiduciary minimum.
No ceiling on duties to share information. This section imposes a mandatory 
floor, rather than a ceiling, on a directed trustee's and a trust director's duty to share 
information. The terms of a trust may specify more extensive duties of information 
sharing among directed trustees and trust directors.
§2111.  No duty to monitor, inform or advise
1.  Trustee.  Unless the terms of a trust provide otherwise:
A.  A trustee does not have a duty to:
(1)  Monitor a trust director; or
(2)  Inform or give advice to a settlor, beneficiary, trustee or trust director 
concerning an instance in which the trustee might have acted differently than the 
director; and
B.  By taking an action described in paragraph A, a trustee does not assume the duty 
excluded by paragraph A.
2.  Trust director.  Unless the terms of a trust provide otherwise:
A.  A trust director does not have a duty to:
(1)  Monitor a trustee or another trust director; 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 than a 
trustee or another trust director; and
B.  By taking an action described in paragraph A, a trust director does not assume the 
duty excluded by paragraph A.
Comment
(This is Section 11 of the Uniform Directed Trust Act (2017).)
Following existing statutes. Subsection (a) provides that a trustee does not have a 
duty to monitor a trust director or inform or give advice to a settlor, beneficiary, trustee, 
or trust director concerning instances in which the trustee might have acted differently 
than the director. Many existing state statutes are to similar effect, though the language in 
this section is simpler and more direct. Subsection (b) applies the same rule to a trust 
director regarding the actions of a trustee or another trust director. 
The existing statutes on which this section is based were meant to reverse the 
result in Rollins v. Branch Banking & Trust Company of Virginia, 56 Va. Cir. 147 
(2002), in which the court considered the liability of a trustee that was subject to direction 
in investment. The court declined to hold the trustee liable for the investment director's 
failure to direct diversification of the trust's investments, but the court nevertheless held 
the trustee liable for failing to advise the beneficiaries about the risks of the investment 
director's actions.
Survival of trustee's and trust director's general duty of disclosure. Although this 
section confirms that a directed trustee has no duty to monitor a trust director or inform or 
give advice to others concerning instances in which the trustee might have acted 
differently than the director, this section does not relieve a trustee of its ordinary duties to 
disclose, report, or account under otherwise applicable law such as under Uniform Trust 
Code § 813 (2004) or Restatement (Third) of Trusts § 82 (2007). The same is true for a 
trust director, on whom Section 8(a) imposes the fiduciary duties of a trustee.
For example, if a trust director has a power to direct investments, this section 
would relieve a directed trustee of any duty to advise a beneficiary about the risks of the 
director's decision to concentrate the investment portfolio. The trustee would remain 
under a duty, however, to make periodic reports or accountings to the beneficiary and to 
answer reasonable inquiries by the beneficiary about the administration of the trust to the 
extent required by otherwise applicable law. The trustee would also remain under the 
duty imposed by Section 10 to provide a trust director with information reasonably 
related to its powers and duties.
No assumption of duty. In addition to waiving a directed trustee's duty to monitor, 
inform, or give advice as under subsection (a)(1), many state statutes go further and also 
provide that if a trustee for some reason chooses to monitor, inform, or give advice, these 
activities will be deemed to be "administrative actions." See, e.g., Del. Code Ann. tit. 12, 
§ 3313(e) (2017). The purpose of these provisions is to ensure that if a directed trustee 
chooses for some reason to monitor, inform, or give advice, the trustee does not assume a 
continuing obligation to do so or concede a prior duty to have done so. This section 
dispenses with the opacity of an administrative classification and achieves the intended 
result more directly. Subsection (a)(2) provides that if a trustee monitors, informs, or 
gives advice about the actions of a trust director, the trustee does not thereby assume a 
duty to do so. Subsection (b)(2) applies the same rule for a trust director.
§2112.  Application to cotrustee
The terms of a trust may relieve a cotrustee from duty and liability with respect to 
another cotrustee's exercise or nonexercise of a power of the other cotrustee to the same 
extent that in a directed trust a directed trustee is relieved from duty and liability with 
respect to a trust director's power of direction under sections 2109 to 2111.
Comment
(This is Section 12 of the Uniform Directed Trust Act (2017).)
Traditional law. Under traditional law, each cotrustee "has a duty to use 
reasonable care to prevent a cotrustee from committing a breach of trust and, if a breach 
of trust occurs, to obtain redress." Restatement (Third) of Trusts § 81(2) (2007). This rule 
applies even if the settlor limits the role or function of one of the cotrustees. "Even in 
matters for which a trustee is relieved of responsibility, … if the trustee knows that a co-
trustee is committing or attempting to commit a breach of trust, the trustee has a duty to 
take reasonable steps to prevent the fiduciary misconduct." Id. cmt. b. Moreover, "even in 
the absence of any duty to intervene or grounds for suspicion, a trustee is entitled to 
request and receive reasonable information regarding an aspect of trust administration in 
which the trustee is not required to participate." Id. These rules for cotrusteeship contrast 
with the less demanding fiduciary standards for a directed trusteeship under Sections 9, 
10, and 11 of this act. 
Settlor autonomy. This section allows a settlor to choose either fiduciary regime 
for a cotrusteeship—the traditional rules of cotrusteeship or the more permissive rules of 
a directed trusteeship. There seems little reason to prohibit a settlor from applying the 
fiduciary rules of this act to a cotrusteeship given that the settlor could choose the more 
permissive rules of a directed trusteeship by labeling one of the cotrustees as a trust 
director and another as a directed trustee. The rationale for permitting the terms of a trust 
to reduce the duty of a cotrustee that is subject to direction by another trustee is the same 
as the rationale for permitting the terms of a trust to reduce the duty of a directed trustee. 
In both instances, a trustee must act according to directions from another person and 
therefore the other person, not the trustee, should bear the full fiduciary responsibility for 
the action.
Accordingly, if the terms of a trust so provide, a cotrustee may have only the duty 
required by the reasonable action and willful misconduct standards specified in Section 9, 
and be subject to the narrower rules governing information sharing and monitoring 
specified in Sections 10 and 11, with respect to another cotrustee's exercise or 
nonexercise of a power of that other cotrustee. If the terms of a trust indicate that a 
directed cotrustee is to have no duty or is not a fiduciary, then the effect will be to reduce 
the cotrustee's duties to those prescribed by Sections 9 through 11, just as would be the 
effect of similar language for a directed trustee. 
Mechanics of choosing directed trustee duties. Under this section the default rule 
is that, if a settlor names cotrustees, the traditional law of cotrusteeship applies. The 
fiduciary duties of directed trusteeship will only apply to a cotrustee if the terms of the 
trust manifest such an intent.  Whether this section applies to a given trust is thus a 
question of construction. This section does not impose a requirement of express reference 
to this section or to this act. Moreover, under Section 3(a), this section applies to a trust 
created before the effective date of this act, but only as to a decision or action on or after 
that date.
For example, a familiar drafting strategy is to name cotrustees but also to provide 
that in the event of disagreement about a particular matter the decision of a specified 
trustee controls and the other cotrustee has no liability in that event. Under traditional 
law, notwithstanding this provision, the other cotrustee would be liable if it did not take 
reasonable steps to prevent a breach by the controlling cotrustee. Under this section, on a 
prospective basis the other cotrustee would be liable only for its own willful misconduct 
akin to a directed trustee. 
Cotrustees as directed trustees and trust directors. The terms of a trust can place 
a cotrustee in a position of either giving direction, like a trust director, or taking direction, 
like a directed trustee. This section only applies to a cotrustee that takes direction. This 
section does not address the duties of a cotrustee that is not directed. Nor does this section 
address the duties of a cotrustee that gives direction. Under Section 8, the background law 
of an enacting state that applies to a directing cotrustee also applies to a similarly situated 
trustee. The drafting committee intended that the language "with respect to another 
cotrustee's exercise or nonexercise of a power of the other cotrustee" would refer only to 
a power of another cotrustee and not a power held jointly with the directed cotrustee, 
because a cotrustee cannot be thought of as taking direction from another cotrustee if the 
two cotrustees exercise a power jointly.
No third-party effects. Although this section changes the degree to which the 
terms of a trust may reduce a cotrustee's duty and liability, it does not alter the rules that 
affect the rights of third parties who contract with or otherwise interact with a cotrustee. 
The principal difference between cotrusteeship and directed trusteeship is that in a 
cotrusteeship every cotrustee has title to the trust property, whereas in a directed 
trusteeship, title to trust property belongs only to the trustee, and not to the trust director. 
The placement of title can have important consequences for dealings with third parties 
and for tax, property, and other bodies of law outside of trust law. This section does not 
change the rights of third parties who deal with a cotrustee in the cotrustee's capacity as 
such. 
2113.  Limitation of action against trust director
1.  Action for breach of trust.  An action against a trust director for breach of trust 
must be commenced within the same limitation period as in the Maine Uniform Trust 
Code, section 1005 for an action for breach of trust against a trustee in a like position and 
under similar circumstances.
2.  Report or accounting.  A report or accounting has 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 the Maine Uniform Trust Code, section 1005 in an action 
for breach of trust against a trustee in a like position and under similar circumstances.
Comment
(This is Section 13 of the Uniform Directed Trust Act (2017).)
This section absorbs for a trust director the law of an enacting state governing 
limitations on an action against a trustee. A limitation applies to a trust director as it 
would to a trustee in a like position and under similar circumstances. Whether the law is 
default or mandatory as applied to a trust director, for example, is determined by whether 
it is default or mandatory as applied to a trustee.
Subsection (a) extends to a trust director the same limits on liability that a trustee 
enjoys under the law of an enacting state by way of a statutory limitations period, such as 
under Uniform Trust Code § 1005(c) (2000). The limitations period absorbed by 
subsection (a) applies to all claims against a trust director for breach of trust, whether by 
a beneficiary, a trustee, another trust director, or some other party.
Subsection (b) extends to a trust director the same limitation period that a trustee 
enjoys under the law of an enacting state arising from the making of a report or 
accounting, such as under Uniform Trust Code § 1005(a)–(b) (2000). The rule of 
subsection (b) applies regardless of whether the report or accounting was made by the 
trust director. A trust director may therefore be protected by a report or accounting made 
by a trustee or another trust director even though the director did not make the report or 
accounting, so long as the report or accounting fairly discloses the relevant facts of the 
director's conduct.
Laches, which strictly speaking is an equitable defense rather than a limitations 
period, would apply to an action against a trust director under Section 14.
§2114.  Defenses in action against trust director
In an action against a trust director for breach of trust, the director may assert the 
same defenses a trustee in a like position and under similar circumstances could assert in 
an action for breach of trust against the trustee.
Comment
(This is Section 14 of the Uniform Directed Trust Act (2017).)
Absorption. This section makes available to a trust director the same defenses 
that are available to a trustee in a like position and under similar circumstances in an 
action for breach of trust. A trust director can assert any defense that would be available 
to a trustee in a comparable action for breach of trust under existing state law, including: 

laches or estoppel (see Restatement (Third) of Trusts § 98 (2012));

consent, release, or ratification by a beneficiary (see Uniform Trust Code § 1009 
(2001); Restatement (Third) of Trusts § 97(b)–(c) (2012));

reasonable reliance on the terms of a trust (see Uniform Trust Code § 1006 
(2000); Uniform Prudent Investor Act § 1(b) (1994)); and

reasonable care in ascertaining the happening of an event affecting administration 
or distribution (see Uniform Trust Code § 1007 (2000); Restatement (Third) of 
Trusts § 76 cmt. f (2007)).
Exculpation or exoneration. The comments to Section 8 address the effect of an 
exculpation or exoneration clause on the duty and liability of a trust director.  
Attorney's fees and indemnification. Attorney's fees and indemnification for a 
trust director are governed by Section 6(b)(1), which establishes a default rule that allows 
a trust director to exercise "any further power appropriate to the exercise or nonexercise 
of a power of direction granted to the director." By default, therefore, a trust director has 
a power to incur attorney's fees and other expenses and to direct indemnification for them 
if doing so would be "appropriate" to the exercise of the director's express powers.  
§2115.  Jurisdiction over trust director
1.  Personal jurisdiction.  By accepting appointment as a trust director of a trust 
subject to this Act, the director submits to personal jurisdiction of the courts of this State 
regarding any matter related to a power or duty of the director.
2.  Other methods not excluded.  This section does not preclude other methods of 
obtaining jurisdiction over a trust director.
Comment
(This is Section 15 of the Uniform Directed Trust Act (2017).)
Under subsection (a), by accepting appointment as a trust director of a trust 
subject to this act, the director submits to personal jurisdiction of the courts of this state 
with respect to "any matter related to a power or duty of the director." This subsection 
does not apply to a person that has not accepted appointment as a trust director (the 
question of whether a person has accepted appointment is governed by Section 16(1)). 
The drafting committee contemplated that a purported director could contest acceptance, 
and therefore jurisdiction, in the normal course of a judicial proceeding in which the 
matter arose, as under Fed. R. Civ. P. § 12(b)(2).  
Jurisdiction over a person that has accepted appointment as trust director is 
mandatory. The terms of a trust or an agreement among the trust director and other parties 
cannot negate personal jurisdiction over a trust director under this section. However, this 
section does not preclude a court from declining to exercise jurisdiction under the 
doctrine of forum non conveniens. 
Subsection (b) confirms that subsection (a) does not prescribe the exclusive 
method of obtaining jurisdiction over a trust director.
§2116.  Office of trust director
Unless the terms of a trust provide otherwise, the rules applicable to a trustee apply to 
a trust director regarding the following matters:
1.  Acceptance.  Acceptance under the Maine Uniform Trust Code, section 701;
2.  Bond to secure performance.  Giving of bond to secure performance under the 
Maine Uniform Trust Code, section 702;
3.  Reasonable compensation.  Reasonable compensation under the Maine Uniform 
Trust Code, section 708;
4.  Resignation.  Resignation under the Maine Uniform Trust Code, section 705;
5.  Removal.  Removal under the Maine Uniform Trust Code, section 706; and
6.  Successor.  Vacancy and appointment of successor under the Maine Uniform 
Trust Code, section 704.
Comment
(This is Section 16 of the Uniform Directed Trust Act (2017).)
This section applies the law of trusteeship to a trust directorship with regard to 
seven subjects. Whether the law is default or mandatory as applied to a trust director 
depends on whether it is default or mandatory as applied to a trustee.
Paragraph (1)—acceptance. This paragraph absorbs an enacting state's law 
governing acceptance of a trusteeship, such as under Uniform Trust Code § 701(a)–(b) 
(2000) or Restatement (Third) of Trusts § 35 (2003), for application to acceptance of a 
trust directorship. However, whereas a trustee is expected to participate actively in the 
administration of the trust, and is therefore usually capable of signaling acceptance by 
conduct, some trust directors, such as a director with a power to determine the settlor's 
competence, may not take any action for long stretches of time, if ever. This delay in 
action may complicate acceptance by conduct.
Paragraph (2)—bond. This paragraph absorbs an enacting state's law governing 
bond to secure performance by a trustee, such as under Uniform Trust Code § 702(a)–(b) 
(2000) and Restatement (Third) of Trusts § 34(3) (2003), for application to bond by a 
trust director. The drafting committee assumed that bond would seldom be required for a 
trust director, as in the usual case the director would not have custody of the trust 
property. 
Paragraph (3)—reasonable compensation. This paragraph absorbs an enacting 
state's law governing reasonable compensation of a trustee, such as under Uniform Trust 
Code § 708 (2000) and Restatement (Third) of Trusts § 38 cmt. i (2003), for application 
to compensation of a trust director. The drafting committee contemplated that, just as in 
total "the reasonable fees for multiple trustees may be higher than for a single trustee," 
Restatement (Third) of Trusts § 38 cmt. i (2003), so too the total reasonable fees for a 
trust with a directed trustee and a trust director may be higher than for a single trustee. 
Reasonable compensation for a trust director will vary based on the nature of the 
director's powers, and in some circumstances may well be zero. A state that provides a 
statutory commission for a trustee should therefore refrain from using the commission for 
a trust director and should instead use a rule of reasonable compensation. Statutory 
trustee commissions will often overcompensate a trust director, especially a director that 
does not participate actively on an ongoing basis in the administration of the trust. The 
problem will be especially serious in a trust with multiple such directors.
Moreover, the reasonable compensation of a directed trustee is likely to be less 
than that for a trustee that is not directed. An apt analogy is to a trustee that hires others to 
"render services expected or normally to be performed by the trustee." Restatement 
(Third) of Trusts § 38 cmt. c(1) (2003); see also Uniform Prudent Investor Act § 9 cmt. 
(1994) ("If, for example, the trustee's regular compensation schedule presupposes that the 
trustee will conduct the investment management function, it should ordinarily follow that 
the trustee will lower its fee when delegating the investment function to an outside 
manager."). 
Paragraph (4)—resignation. This paragraph absorbs an enacting state's law 
governing resignation by a trustee, such as under Uniform Trust Code § 705 (2001) and 
Restatement (Third) of Trusts § 36 (2003), for application to resignation by a trust 
director. 
Paragraph (5)—removal. This subsection absorbs an enacting state's law 
governing removal of a trustee, such as under Uniform Trust Code § 706 (2000) and 
Restatement (Third) of Trusts § 37 cmt. e (2003), for application to removal of a trust 
director.
Paragraph (6)—vacancy. This section absorbs an enacting state's law applicable 
to a vacancy in a trusteeship for application to a vacancy in a trust directorship. For 
example, under Uniform Trust Code § 704 (2004), "a vacancy in a trusteeship need not be 
filled" if "one or more cotrustees remain in office." So too, if three of five trust directors 
with a joint power to determine the settlor's capacity remain in office, the court "need 
not" fill the vacancies, though the vacancies should be filled if doing so would be more 
consistent with the settlor's plan. Likewise, if the sole trust director with power over 
investment of the trust property ceases to serve, in most circumstances the vacancy 
should be filled, and this is true even if other directors with unrelated powers remain in 
office. An apt analogy is to a trust with several cotrustees, each of whom has controlling 
authority over different aspects of the trust's administration. If any of those trustees ceases 
to serve, in many circumstances a court should appoint a successor even though other 
cotrustees remain in office. 
Costs and indemnification. The power of a trust director to incur reasonable costs 
and to direct indemnification for expenses would in most cases be covered by Section 
6(b)(1). 
§2117.  Uniformity of application and construction
In applying and construing this uniform act, consideration must be given to the need 
to promote uniformity of the law with respect to its subject matter among states that enact 
it.
§2118.  Relation to Electronic Signatures in Global and National Commerce Act
This Act modifies, limits and supersedes the federal Electronic Signatures in Global 
and National Commerce Act, 15 United States Code, Section 7001 et seq., but does not 
modify, limit or supersede Section 101(c) of that Act, 15 United States Code, Section 
7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) 
of that Act, 15 United States Code, Section 7003(b).
§2119.  Effective date
This Act takes effect January 1, 2020.
SUMMARY
This bill enacts the Maine Uniform Directed Trust Act as approved by the Uniform 
Law Commissioners in 2017.  It includes confirming amendments to the Uniform Trust 
Code, adopted in this State as the Maine Revised Statutes, Title 18-B, Part 1, the Maine 
Uniform Trust Code.