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Florida Breach of Fiduciary Duty

FAQs • Apr 15, 2021

A Florida breach of fiduciary duty is serious stuff. It can bring damages to beneficiaries or an estate or a trust. And a whole lot of trouble to a bad trustee or personal representative or POA. We have previously written about excessive compensation and removing or suspending a trustee. We have also written about this topic of FIDUCIARY DUTY before. Now, let’s lay it all out there in plain English. And from a standpoint that other Florida Legal Blogs may not take .

Florida Breach of Fiduciary Duty

What is a Fiduciary?

Before we define Florida Breach of Fiduciary Duty, let’s make sure you have the background. First, a trustee owes DUTIES to her beneficiaries. Same for a PERSONAL REPRESENTATIVE. Trustees and personal representatives are fiduciaries. Fiduciaries are those who volunteer to perform certain tasks for others. I say “volunteer” because no one can be forced to serve others or be a fiduciary. Even if you are nominated or named in a will or trust. If you don’t want to serve, decline. Fiduciaries, most of the time, are entitled to reasonable compensation. A Power of Attorney, also called an attorney-in-fact, is also a fiduciary. Don’t be confused. Even though the Power of Attorney Law uses the word “agent”, a POA is a fiduciary.

Standards of a Fiduciary

There are certain “rules of the game.” Standards. If a personal representative or trustee acts badly or steals money or takes secret fees, they can be SURCHARGED. But civil theft is not necessary for a fiduciary to be surcharged or found to have breached her fiduciary duty. If a fiduciary’s conduct falls below the appropriate standard, that’s a breach. And subject to damages and attorneys fees. The Florida Probate Code tells us all about how Personal Representatives are supposed to act. Personal Representatives are those who run, or administer, a Florida estate or probate. In some states, a Personal Representative is called an “executor.” Personal Representatives owe estate beneficiaries the duties of a Florida Trustee. To read about the duties and powers of a Florida Personal Representative, CLICK HERE.

What About Trustees?

Yes, trustees owe serious duties, too. Just like a Florida Personal Representative. Or a POA. The Florida Trust Code in Chapter 736 of the Florida Statutes tells us all about a trustee’s job. The trustee owes a number of duties to trust beneficiaries. Break or breach one of those, and that can be the start of a breach of fiduciary duty claim. But, there’s more ! Now that we have the background, let’s spell it out and answer: what is Florida breach of fiduciary duty?

Successor Fiduciaries

Breach of fiduciary duty is a cause of action. Made up of parts or elements. Some describe it as a lawsuit that an injured or damaged beneficiary may bring against a fiduciary. But successor fiduciaries can also bring a claim against a prior fiduciary if they discover wrongs. In fact, Personal Representatives and Trustees have a duty to sue a prior fiduciary if they discover wrongs.

Explaining Florida Breach of Fiduciary Duty

A breach of fiduciary duty lawsuit must demonstrate four elements or things. First, there was a fiduciary relationship. This can be in writing, such as a trust or with probate documents, or a power of attorney document. Or, in some cases, you don’t need a writing. It can be assumed in the law or by one’s conduct or even oral statements. Second, you need a breach of that duty. A break of those duties. A circumstance where the fiduciary did not live up to the correct standards. Her conduct fell short. Third, you need causation. Ask yourself: did the breach by the fiduciary actually cause harm? There needs to be a connection. Last, there needs to be damages. Remember, the Florida Trust Code specifically says that if there is no breach, the trustee is not responsible for a loss in value of trust property. Damages must be proven and can’t be speculative. And remember, although a beneficiary may have the right to sue a fiduciary, they don’t necessary keep the damages if they win. Most of the time, damages go back to the estate or trust.