2011 Florida Statutes
Delegation of investment functions.
Delegation of investment functions.
518.112 Delegation of investment functions.—
(1) A fiduciary may delegate any part or all of the investment functions, with regard to acts constituting investment functions that a prudent investor of comparable skills might delegate under the circumstances, to an investment agent as provided in subsection (3), if the fiduciary exercises reasonable care, judgment, and caution in selecting the investment agent, in establishing the scope and specific terms of any delegation, and in reviewing periodically the agent’s actions in order to monitor overall performance and compliance with the scope and specific terms of the delegation.
(2)(a) The requirements of subsection (1) notwithstanding, a fiduciary that administers an insurance contract on the life or lives of one or more persons may delegate without any continuing obligation to review the agent’s actions, certain investment functions with respect to any such contract as provided in subsection (3), to any one or more of the following persons as investment agents:
1. The trust’s settlor if the trust is one described in s. 733.707(3);
2. Beneficiaries of the trust or estate, regardless of the beneficiary’s interest therein, whether vested or contingent;
3. The spouse, ancestor, or descendant of any person described in subparagraph 1. or subparagraph 2.;
4. Any person or entity nominated by a majority of the beneficiaries entitled to receive notice under paragraph (3)(b); or
5. An investment agent if the fiduciary exercises reasonable care, judgment, and caution in selecting the investment agent and in establishing the scope and specific terms of any delegation.
(b) The delegable investment functions under this subsection include:
1. A determination of whether the insurance contract was procured or effected in compliance with s. 627.404;
2. A determination of whether any insurance contract is or remains a proper investment;
3. The investigation of the financial strength of the life insurance company;
4. A determination of whether or not to exercise any policy option available under any insurance contracts;
5. A determination of whether or not to diversify such contracts relative to one another or to other assets, if any, administered by the fiduciary; or
6. An inquiry about changes in the health or financial condition of the insured or insureds relative to any such contract.
(c) Until the contract matures and the policy proceeds are received, a fiduciary that administers insurance contracts under this subsection is not obligated to diversify nor allocate other assets, if any, relative to such insurance contracts.
(3) A fiduciary may delegate investment functions to an investment agent under subsection (1) or subsection (2), if:
(a) In the case of a guardianship, the fiduciary has obtained court approval.
(b) In the case of a trust or estate, the fiduciary has given written notice, of its intention to begin delegating investment functions under this section, to all beneficiaries, or their legal representative, eligible to receive distributions from the trust or estate within 30 days of the delegation unless such notice is waived by the eligible beneficiaries entitled to receive such notice. This notice shall thereafter, until or unless the beneficiaries eligible to receive income from the trust or distributions from the estate at the time are notified to the contrary, authorize the trustee or legal representative to delegate investment functions pursuant to this subsection. This discretion to revoke the delegation does not imply under subsection (2) any continuing obligation to review the agent’s actions.
1. Notice to beneficiaries eligible to receive distributions from the trust from the estate, or their legal representatives shall be sufficient notice to all persons who may join the eligible class of beneficiaries in the future.
2. Additionally, as used herein, legal representative includes one described in s. 731.303, without any requirement of a court order, an attorney-in-fact under a durable power of attorney sufficient to grant such authority, a legally appointed guardian, or equivalent under applicable law, any living, natural guardian of a minor child, or a guardian ad litem.
3. Written notice shall be given as provided in part III of chapter 731 as to an estate, and as provided in s. 736.0109 and part III of chapter 736 as to a trust.
(4) If all requirements of subsection (3) are satisfied, the fiduciary shall not be responsible otherwise for the investment decisions nor actions or omissions of the investment agent to which the investment functions are delegated.
(5) The investment agent shall, by virtue of acceptance of its appointment, be subject to the jurisdiction of the courts of this state.
(6) In performing a delegated function, the investment agent shall be subject to the same standards as the fiduciary.
History.—s. 3, ch. 93-257; s. 8, ch. 97-240; s. 2, ch. 2010-172.