Comment Letter of Professors John D. Morley and Robert H. Sitkoff on the Office of the Comptroller of the Currency's Advance Notice of Proposed Rulemaking on the Definition of 'Fiduciary Capacity' Regarding 'Directed Trusts'

6 Pages Posted: 8 Nov 2019

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John Morley

Yale Law School; European Corporate Governance Institute (ECGI)

Robert H. Sitkoff

Harvard University - Harvard Law School; European Corporate Governance Institute (ECGI)

Date Written: June 28, 2019

Abstract

In April 2019, the Office of the Comptroller of the Currency (OCC) issued an Advance Notice of Proposed Rulemaking (ANPR) on the definition of "fiduciary capacity" regarding "directed trusts." The ANPR references in particular the Uniform Directed Trust Act (UDTA) (Unif. Law Comm’n 2017). We served as the Reporter (Morley) and Chair (Sitkoff) of the drafting committee for the UDTA.

Following the UDTA, we use the term “directed trust” to refer to a trust in which the terms of the trust grant a person other than a trustee a power over some aspect of the trust’s administration. As the prefatory note to the UDTA explains, “[t]here is no consistent vocabulary to describe the person other than a trustee that holds a power in a directed trust. Several terms are common in practice, including ‘trust protector,’ ‘trust adviser,’ and ‘trust director.’” The same is true for the trustee in a directed trust, who may be “sometimes called an ‘administrative trustee’ or ‘directed trustee.’” Following the UDTA, we will refer to a trustee in a directed trust as a “directed trustee,” a person who is not a trustee with a power over the administration of the trust as a “trust director,” and the power that a trust director holds over the administration of the trust as a “power of direction.”

The hard question of law and policy raised by the proliferation of directed trusts is how to address the many complications created by giving a power of direction to a trust director, including in particular how to allocate fiduciary responsibility among a trust director and a directed trustee. The patchwork of modern state directed trust statutes, which to varying degrees has displaced the older but more consistent common law regime, has given rise to uncertainty that, in the words of the ANPR, may “make it difficult for institutions to assess and manage litigation risk and to understand OCC expectations for managing these accounts in a safe and sound manner.” We are in agreement that additional OCC guidance on directed trusts could be helpful. However, we have six concerns about the way the ANPR frames the issue, which we elaborate in this comment letter.

Keywords: trust, directed trust, trust director, directed trustee, trust protector, trust adviser, fiduciary duty, willful misconduct, Uniform Directed Trust Act, OCC, safe and sound, banking regulation

JEL Classification: K11, K34, K36

Suggested Citation

Morley, John D. and Sitkoff, Robert H., Comment Letter of Professors John D. Morley and Robert H. Sitkoff on the Office of the Comptroller of the Currency's Advance Notice of Proposed Rulemaking on the Definition of 'Fiduciary Capacity' Regarding 'Directed Trusts' (June 28, 2019). Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3475966 or http://dx.doi.org/10.2139/ssrn.3475966

John D. Morley

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
(203) 436-3527 (Phone)

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium
(203) 436-3527 (Phone)

Robert H. Sitkoff (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

HOME PAGE: http://https://hls.harvard.edu/faculty/directory/10813/Sitkoff

European Corporate Governance Institute (ECGI) ( email )

c/o the Royal Academies of Belgium
Rue Ducale 1 Hertogsstraat
1000 Brussels
Belgium

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