You asked us to provide an opinion examining the law of each state and district within
our region with respect to the following three questions:
Which types of investments are considered appropriate under the "prudent man" rule?
What are the rules governing trustees regarding the investment of funds with which
they are entrusted?
Under state law, are parent payees permitted to invest the finds belonging to their
minor children differently than other types of payees?
INVESTMENTS UNDER THE "PRUDENT MAN" RULE
The Programs Operations Manual System (POMS) provides that representative payees must
invest benefits "in accordance with the rules applying to the investments of trust
estates by trustees." POMS GN 00603.040(A). If a state applies a "prudent man" rule to investments by fiduciaries, representative
payees must invest benefits in a manner that complies with this rule. POMS GN 00603.040(B). Accordingly, we looked at state law in each of our five states and our one district
in order to determine what investments are appropriate under the "prudent man" law
as applied in that state or district.
District of Columbia
The District of Columbia has adopted the Uniform Prudent Investor Act, which provides
that a trustee shall invest trust assets "as a prudent investor would by considering
the purposes, terms, distribution requirements, and other circumstances of the trust."
D.C. Code Ann. § 28-4702(a) (1999). The "prudent investor" rule applies to all trustees
unless the provisions of the trust provide otherwise. D.C. Code Ann. § 28-4701 (1999).
In order to satisfy the "prudent investor" rule, the trustee must "exercise reasonable
care, skill, and caution." Id. The trustee should consider the following circumstances in investing trust assets:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) The expected tax consequences of investment decisions or strategies;
(4) The role that each investment or course of action plays within the overall trust
portfolio, which may include financial assets, interests in closely held enterprises,
tangible and intangible personal property, and real property;
(5) The expected total return from income and the appreciation of capital;
(6) Other resources of the beneficiaries;
(7) Needs for liquidity, for regularity of income, and for preservation or appreciation
of capital; and
(8) An asset's special relationship or special value, if any, to the purposes of the
trust or to one or more of the beneficiaries.
D.C. Code Ann. § 28-4702(c) (1999).
The D.C. Code further provides that, subject to the previously described "prudent
man" standard, a trustee may invest "in any kind of property or type of investment."
D.C. Code Ann. § 28-4702(e) (1999); see Superior Court Rules of the Probate Division, Rule 5(a)(2) (explaining that a fiduciary
is "authorized to acquire every kind of property, real, personal, or mixed and every
kind of investment").
RULES GOVERNING TRUSTEES REGARDING INVESTMENT
Conserved funds must be invested in accordance with the "rules followed by trustees."
20 C.F.R. § 2045(a) (2000). These rules are determined by reference to state law.
POMS GN 00603.040. Accordingly, we looked at the rules followed by trustees in each state and district
within our region to determine what rules representative payees should follow in investing
District of Columbia
Pursuant to the Uniform Prudent Investor Act adopted by the District of Columbia,
a trustee is bound by the "prudent investor" rule previously discussed. D.C. Code
Ann. § 28-4701 et seq. (1999). The Uniform Prudent Investor Act contains additional
rules that must be followed by trustees in investing trust assets. First, a trustee
who has "special skills or expertise, or is named trustee in reliance upon the trustee's
representation that the trustee has special skills or expertise" is required to use
his or her special skills or expertise in investing trust assets. D.C. Code Ann. §
28-4702(f) (1999). Second, a trustee must "take reasonable steps to verify facts relevant
to the investment" of trust assets. D.C. Code Ann. § 28-4702(d) (1999). Third, a trustee
must diversify the investments of a trust "unless the trustee reasonably determines
that, because of special circumstances, the purposes of the trust are better served
without diversifying." D.C. Code Ann. § 28-4703 (1999). Fourth, a trustee must invest
trust assets "solely in the interest of the beneficiaries." D.C. Code Ann. § 28-4705
(1999). Fifth, in investing trust assets, a trustee "may incur only costs that are
appropriate and reasonable in relation to the assets, the purposes of the trust, and
the skills of the trustee." D.C. Code Ann. § 28-4707 (1999). Finally, a trustee may
delegate to an agent investment functions that "a prudent trustee of comparable skills
could properly delegate under the circumstances." D.C. Code Ann. § 28-4709(a) (1999).
The trustee must exercise "reasonable care, skill, and caution in selecting an agent,
establishing the scope of the delegation, and periodically reviewing the agent's actions.
PARENTS AS PAYEES
District of Columbia
District of Columbia statutes and case law do not address the issue of what standard
a parent must follow in investing the funds of his or her minor children.