§ 59-16.2-07 — Duty and liability of excluded fiduciary

North Dakota § 59-16.2-07

• Jurisdiction: North Dakota
• Title 59: Trusts, Uses, and Powers
• Ch. 59-16.2: Directed Trustees

Text

1. The excluded fiduciary shall act in accordance with the governing instrument and
comply with the directing party's exercise of the powers granted to the directing party
by the governing instrument.
2. Unless otherwise provided in the governing instrument, an excluded fiduciary has no
duty to monitor, review, inquire, investigate, recommend, evaluate, or warn with
respect to a directing party's exercise of or failure to exercise any power granted to the
directing party by the governing instrument, including, any power related to the
acquisition, disposition, retention, management, or valuation of any asset or
investment.
3. Except as otherwise provided in this chapter or the governing instrument, an excluded
fiduciary is not liable, either individually or as a fiduciary, for an action, inaction,
consent, or failure to consent by a directing party, including:
a. If a governing instrument provides an excluded fiduciary is to follow the direction
of a directing party and the excluded fiduciary acts in accordance with this
direction, except in cases of willful misconduct on the part of the excluded
fiduciary in complying with the direction of the directing party, the excluded
fiduciary is not liable for any loss resulting directly or indirectly from following the
direction, including compliance regarding the valuation of assets for which there
is no readily available market value.

b. If a governing instrument provides an excluded fiduciary is to act or omit to act
only with the consent of a directing party, except in cases of willful misconduct on
the part of the excluded fiduciary, the excluded fiduciary is not liable for any loss
resulting directly or indirectly from an act taken or omitted as a result of the
directing party's failure to provide consent after having been requested to do so
by the excluded fiduciary.
c. If a governing instrument so provides, or if for any reason, an excluded fiduciary
is required to assume the role or responsibilities of a directing party, or if the
excluded fiduciary appoints a directing party or successor to a directing party,
except in cases of willful misconduct on the part of the excluded fiduciary, the
excluded fiduciary is not liable for any loss resulting directly or indirectly from its
actions in carrying out the roles and responsibilities of the directing party.
4. An excluded fiduciary does not have an obligation to review or evaluate a direction
from a distribution trust advisor nor to perform investment or suitability reviews,
inquiries, or investigations, nor to make recommendations or evaluations with respect
to investments to the extent the directing party, custodial account owner, or authorized
designee of a custodial account owner had authority to direct the acquisition,
disposition, or retention of the investment. If the excluded fiduciary offers
communication to the directing party or an investment person selected by the
investment trust advisor, the action may not be deemed to constitute an undertaking
by the excluded fiduciary to monitor or otherwise participate in actions within the scope
of the advisor's authority or to constitute a duty to do so.
5. An excluded fiduciary does not have a duty to communicate with, warn, or apprise a
beneficiary or third party concerning instances in which the excluded fiduciary would or
may have exercised the excluded fiduciary's own discretion in a manner different from
the manner directed by the directing party.
6. Absent a contrary provision in the governing instrument, the actions of the excluded
fiduciary, including any communications with the directing party or others, or carrying
out, recording, or reporting actions taken at the directing party's direction pertaining to
matters within the scope of authority of the directing party, must be deemed to be
administrative actions taken by the excluded fiduciary solely to allow the excluded
fiduciary to perform those duties assigned to the excluded fiduciary under the
governing instrument. These administrative actions may not be deemed to constitute
an undertaking by the excluded fiduciary to monitor, participate, or otherwise take a
fiduciary responsibility for actions within the scope of authority of the directing party.
7. An excluded fiduciary may obtain and act upon an opinion of counsel on a matter
relevant to this section.