Fla. Stat. § 736.0305 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0305

Fla. Stat. § 736.0305 establishes that a court may appoint a representative for minors, incapacitated persons, unborn persons, unidentifiable persons, and unlocatable persons. This is the same group to which virtual representation is allowed in Fla. Stat. § 736.0304. The commentary to the Uniform Trust Code notes, “The court may appoint a representative to act for a person even if the person could be represented under another section of this article.” This is in direct contradiction to Fla. Stat. § 736.0304, under which virtual representation is available only if no other representative exists.

Subsection (2) notes that an appointed representative may act “with respect to any matter arising under this code, whether or not a judicial proceeding concerning the trust is pending.” Thus, appointed representatives may act even without litigation or a pending court matter. This means a court may appoint a representative to continue acting after the the court’s active supervision has ended.

Subsection (3) states that an appointed representative may consider general benefits accruing to the living members of the represented individual’s family. Thus, an appointed representative is not bound to consider only the interests of the represented but can also consider how that person’s family might benefit from actions taken by the representative. The Code does not require that the appointed representative consider the family, but it does allow for it. Interestingly, no other representative is given this allowance in the Florida Trust Code; only appointed representatives are explicitly given this discretion.

Text of Fla. Stat. § 736.0305

Appointment of representative.—

(1) If the court determines that an interest is not represented under this part, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. If not precluded by a conflict of interest, a representative may be appointed to represent several persons or interests.

(2) A representative may act on behalf of the individual represented with respect to any matter arising under this code, whether or not a judicial proceeding concerning the trust is pending.

(3) In making decisions, a representative may consider general benefits accruing to the living members of the represented individual’s family.

History of Fla. Stat. § 736.0305

Fla. Stat. § 736.0305 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. § 736.0305 was taken from § 305 of the Uniform Trust Code, except that the Florida Trust Code adds the requirement in subsection (1) that the representative not be precluded by a conflict of interest. § 305 of the Uniform Trust Code was itself derived from § 1-403(4) of the Uniform Probate Code.

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