Statutory Duty of Care
- s.1 Trustee Act 2000 imposes a duty of care on trustees: to exercise such skill and care as is reasonable in the circumstances.
- A higher standard applies where the trustee acts in a professional capacity or holds themselves out as having special expertise: s.1(1)(b) TA 2000.
- The duty applies to the exercise of investment powers, appointment of agents, and related functions: Sch.1 TA 2000.
Duty to Invest
- Trustees have a general power of investment (any investment a beneficial owner could make) under s.3 Trustee Act 2000, subject to the standard investment criteria.
- Standard investment criteria (s.4 TA 2000): trustees must consider (a) the suitability of the investment to the trust, and (b) the need for diversification so far as is appropriate.
- Trustees must review investments from time to time: s.4(2) TA 2000.
- Before exercising investment powers (other than in narrowly defined cash investments), trustees must obtain and consider proper advice unless it is unnecessary or inappropriate to do so: s.5 TA 2000.
Duty of Impartiality (Even-Hand Rule)
- Trustees must act impartially between beneficiaries, in particular between income beneficiaries (life tenants) and capital beneficiaries (remaindermen).
- Trustees should not favour one class at the expense of the other; the portfolio must be managed to produce both a reasonable income and preserve capital.
Duty Not to Profit / Conflict Rule
- A trustee must not make an unauthorised profit from their position or place themselves in a conflict of interest: Keech v Sandford (1726) — a trustee who renewed a lease for their own benefit held it on constructive trust.
- The rule is strict: unconscionability is not required; the mere fact of profit suffices.
- Remuneration requires express trust deed authority or court approval (or the statutory charging clause for professional trustees under s.29 TA 2000).
Common Traps
- Assuming the s.1 TA 2000 duty of care applies to all trustee functions — check Sch.1 for the specific functions it covers.
- Confusing s.3 (general power of investment) with the old narrower powers under the Trustee Investments Act 1961 (repealed).
- Thinking a trustee must always obtain advice — s.5 allows them to dispense with it if reasonable in the circumstances.
Exam tip: For investment questions, run through s.3 (power) → s.4 (criteria) → s.5 (advice) in order.