Fla. Stat. § 736.0301 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0301

Fla. Stat. § 736.0301 establishes the general principles and effect of one party representing another in a trust context. This can apply to representation by fiduciaries, parents, attorneys, holders of powers of appointment, persons who have substantially identical interests, appointed representatives, and designated representatives.

Under subsection (1), when one person is represented by another, notice, information, accountings, or reports may be given to the representative instead of the represented. Notice to the representative binds the represented just as if the represented had directly received the notice, information, accountings, or reports. For example, if an attorney validly represents a trust beneficiary in a trust proceeding, notice from the trustee to that attorney may substitute for direct notice to the beneficiary.

Subsection (2) states that actions taken by a representative are binding on the represented, just as if the represented had taken the action herself. For example, if an appointed guardian properly waives a ward-beneficiary’s right to a trust accounting, the guardian’s waiver is binding on the ward.

Subsection (3) contemplates an incapacitated settlor who either receives notice through a representative or consents to an action through the use of a representative. This likely includes common law modification of an irrevocable trust made with the consent of the settlor and all beneficiaries. See Peck v. Peck, 133 So.3d 587, 591 (Fla. 2d DCA 2014).

Subsection (4) allows for a trustee to give notice, information, accountings, or reports directly to a beneficiary, even if that beneficiary is represented. Because it may sometimes be unclear whether a beneficiary is represented, it is typically good practice for a trustee to give notice, information, accountings, and reports to both the beneficiary and the beneficiary’s representative.

Arguably, a constitutional due process exception to Fla. Stat. § 736.0301 may exist in some cases, as was recognized in Barber v. Barber, 837 P.2d 714 (Alaska 1992). In Barber, the Supreme Court of Alaska held that a remainder trust beneficiary’s right to notice was constitutionally protected, despite notice being given to an attorney who supposedly represented that beneficiary’s interests in the settlement proceedings. This possible constitutional exception strengthens the case for always noticing a beneficiary directly, even if a representative is also noticed. That being said, the House of Representatives Staff Analysis of the Florida Trust Code expresses a belief that such a due process exception would likely be narrow in scope:

…the Committee believes that the constitutional requirement may not apply with equal force to all types of representation. It may be that representation over the objection of the person being represented violates due process in all cases. It is also possible, however, that representation by the holder of a power of appointment (or by a settlor designated representative) is distinguishable because the underlying rationale for these types of representation is found either in an equivalency with ownership or in the settlor’s intent.

Text of Fla. Stat. § 736.0301

Representation; basic effect.—

(1) Notice, information, accountings, or reports given to a person who may represent and bind another person under this part may serve as a substitute for and have the same effect as notice, information, accountings, or reports given directly to the other person.

(2) Actions taken by a person who represents the interests of another person under this part are binding on the person whose interests are represented to the same extent as if the actions had been taken by the person whose interests are represented.

(3) Except as otherwise provided in s. 736.0602, a person under this part who represents a settlor lacking capacity may receive notice and give a binding consent on the settlor’s behalf.

(4) A trustee is not liable for giving notice, information, accountings, or reports to a beneficiary who is represented by another person under this part, and nothing in this part prohibits the trustee from giving notice, information, accountings, or reports to the person represented.

History of Fla. Stat. § 736.0301

Fla. Stat. § 736.0301 became law on July 1, 2007 as part of the Florida Trust Code. It has not been amended or revised since that date.

Fla. Stat. § 736.0301 was based on § 301 of the Uniform Trust Code, although substantial changes were made to the text. § 301 of the Uniform Trust Code reads:

REPRESENTATION: BASIC EFFECT.

(a) Notice to a person who may represent and bind another person under this [article] has the same effect as if notice were given directly to the other person.

(b) The consent of a person who may represent and bind another person under this [article] is binding on the person represented unless the person represented objects to the representation before the consent would otherwise have become effective.

(c) Except as otherwise provided in Sections [411 and] 602, a person who under this [article] may represent a settlor who lacks capacity may receive notice and give a binding consent on the settlor’s behalf.

[(d) A settlor may not represent and bind a beneficiary under this [article] with respect to the termination or modification of a trust under Section 411(a).]

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.