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Advising Fiduciaries

What is a fiduciary or fiduciary relationship?

A “fiduciary duty” is a duty, also an obligation of trust imposed by law to act in the best interests of a person. A fiduciary duty can be recognized as a defined relationship in some instances such as, an estate trustee and a beneficiary of an estate; a trustee and a beneficiary of the trust; a solicitor/client relationship; a professional relationship with any other professional person and client; a parent and child; a guardian; an attorney under Power of Attorney; and a doctor and patient, to name but a few. A fiduciary duty however may also exist in other circumstances which are situational or circumstantial, such as where an elderly person, for example, or incapable person, is vulnerable or dependant on a particular person which establishes a defined relationship of trust.

The area encompasses issues of capacity, and capacity assessments and power of attorney litigation, trust disputes and interpretation. There is a vast amount of case law concerning fiduciaries, their obligations and duties.

This area of practice is growing at an alarming rate. Power of attorney disasters are all too prevalent today. As advisors we are increasing aware of the far reaching consequences of this practice area, the potential minefield of things that can go wrong, as well as ensuring familiarity with the legislation and case law in order to competently advise our clients ‚ this is so whether we are solicitors addressing our client’s concern at first instance or barristers litigating after the fact.

The area of fiduciary law evolved from the jurisdiction of the Court of Chancery over trust and confidences in England a great many years ago. It pertains to the fidelity of a person in whom trust or confidence has been placed, and renders enforceable the expectations of the duty of loyalty and faithfulness arising from the relationship. Fiduciary law and litigation deals with the conduct of persons entrusted or in a position of confidence. The relation existing between a principal and its agent is of a fiduciary nature whenever the principal grants a trust or confidence in the person whom is selected as the agent.

Fiduciary law encompasses the law of trusts, the law of confidences, the law of tort, contract law, agency, and arises out of duty and breach thereof.

Resources:

WEL Capacity Checklist for POA for Personal Care

WEL Capacity Checklist for Property

Our publication: WEL on Fiduciary Accounting

This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation.

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