PR 07240.033 New Jersey

A. PR 01-225 Investment of Conserved Funds

DATE: August 15, 2001

1. SYLLABUS

In the New York Region, both New Jersey and New York have adopted The Uniform Prudent Investor Act (UPIA) within their laws.

The UPIA was approved and recommended for enactment in all States by the National Conference of Commissioners on Uniform State Laws in 1994. The UPIA provides investment rules for trustees and like fiduciaries, including representative payees, that result in greater protection of assets while providing a prospect of better income.

The UPIA has not been enacted by Puerto Rico or the U.S. Virgin Islands. Puerto Rico's Civil Code does not include an express standard of conduct for fiduciaries. The U.S. Virgin Islands retains the “prudent man” rule, but there are no reported cases interpreting that section of the U.S. Virgin Islands Code. However, both Puerto Rico and the U.S. Virgin Islands will look to Anglo-American common law in situations where there is no case law on a specific statute, or when the statutes are silent on the matter.

The law in both States and jurisdictions is silent on whether parents, as natural guardians, are permitted to invest funds belonging to their minor children differently than other payees.

In both New Jersey and New York, trustees must use reasonable care, skill, and caution with the interest of the beneficiary as the key element. There is an assumption that the trustee will be impartial with no conflict of interest. Trustees may invest in every kind of property and type of investment subject to the prudent investor rule. No specific types of investments are required or restricted. No specific investment or course of action is, taken alone, prudent or imprudent. Trustees should diversify investments unless it is in the best interest of the beneficiary not to diversify.

2. OPINION

QUESTIONS PRESENTED

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:

  1. Which types of investments are considered appropriate under the "prudent man" rule?

  2. What are the rules governing trustees regarding the investment of funds with which they are entrusted?

  3. Under state law, are parent payees permitted to invest the finds belonging to their minor children differently than other types of payees?

QUESTION #1 PRESENTED

What types of investments are considered appropriate under the “prudent man” rule?

ANSWER

Under the Uniform Prudent Investor Act (“UPIA”), no investment type is appropriate or inappropriate. The UPIA is proposed legislation which once enacted, is a modern codification of the “prudent man rule.” At least forty-five states have enacted this legislation, including New York (effective January 1, 1995) and New Jersey (effective June 5, 1997). It has not been enacted by the U.S. Virgin Islands or Puerto Rico. The Virgin Islands retains the “prudent man” rule, but there are no reported cases interpreting that section of the Virgin Islands code. Puerto Rico's Civil Code does not include an express standard of conduct for fiduciaries. However, both the Virgin Islands and Puerto Rico will look to Anglo-American common law in situations where there is no case law on a specific statute, or when the statutes are silent on the matter.

I. The Uniform Prudent Investor Act, In General

The UPIA is a standard of conduct for trustees to follow when making investment decisions over the property in their control. The Act explicitly states that any type of investment is permitted. “A trustee may invest in any kind of property or type of investment consistent with the standards of this [act].” U.P.I.A. §2(d). Thus, as long as any given investment decision comports with the standard of conduct contained in the act, the trustee will not be found liable merely because of the type of investment.

The standard itself is based on prudence, as was the “prudent man” rule. Under the UPIA however, the trustee must invest as a “prudent investor would by considering the purposes, terms distribution requirements, and other circumstances of the trust.” Id . at §2(a). In doing so, he must exercise “reasonable care, skill and caution.” Id . The UPIA eliminates the traditional requirement that trustees act as intelligent and discrete men would, when managing the disposition of their own funds in regard to the probable income as well as the probable safety of their capital.

Whether an investment decision complies with the UPIA standard will be determined by examining the totality of the circumstances at the time the decision or investment event occurred. Decisions will be judged “not in isolation, but in the context of the trust portfolio as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the trust.” Id. at §2(b). Thus, no investment is inappropriate in its essence, but may be inappropriate in light of the factors existing at the time of the decision.

The drafters of the UPIA based the Act on section 227 of the Restatement of Trusts (Third). See Uniform Laws Annotated, “Uniform Prudent Investor Act” §2, Comment (1994). Both the UPIA and section 227 of the Restatement disavow the categoric restrictions on types of investments that had developed in some jurisdictions under the old “prudent man” rule. Rather than measuring prudence by investment outcome, the new rule encourages management of risk. Id.

Specific investments or techniques are not per se prudent or imprudent. The riskiness of a specific property, and thus the propriety of its inclusion in the trust estate, is not judged in the abstract but in terms of its anticipated effect on the particular trust's portfolio.

Restatement of Trusts (Third) §227, Comment f, at 24 (1992). Investment decisions made by trustees, or payees, in New York and New Jersey, and to a lesser extent Puerto Rico and the Virgin Islands, see infra, will be judged on this standard.

New Jersey

Both New York and New Jersey have enacted the UPIA. Consistent with the act, each state's statute includes the caveat that any type of investment is permitted under the standards of the Act. In New York, under the “Prudent Investor Act,” a “trustee” _1/ may

invest in any type of investment consistent with the requirements of this paragraph, since no particular investment is inherently prudent or imprudent for purposes of the prudent investment standard;

McKinney's EPTL §11-2.3(b)(4)(A). The act in New Jersey_2/ states:

Subject to the standards established in this act, a fiduciary may invest in any kind of property or type of investment. No specific investment or course of action is inherently imprudent.

N.J.S.A. §3B:20-11.3c.

Case law in New York and New Jersey does little to clarify what types of investments are permitted by the courts under the prudent investment acts in these states. No state or federal courts have reported adjudicating New Jersey's prudent investor law enacted in mid-1997._3/ However, a few courts in New York have ruled on its 1995 prudent investor act.

In the context of common trust funds, two cases decided by New York courts indicate that the prudent investor act permits greater flexibility for trustees when considering investment of trust assets. In Matter of Bankers Trust Company, 636 N.Y.S.2d 741 (N.Y. App. Div. 1995) the Appellate Division, First Department responded to income beneficiaries' objections to the trustee's accounting and reviewed investments of funds from a common trust fund. Bankers Trust Co., at 742-43. In doing so, the court stated that the prudent investor act did not apply to the case at hand, but made a point of also stating that “the prudent investor [act] provides for greater flexibility in individual investments because of the recognition that consideration should be given to the portfolio as a whole.” Id . at 744.

A second common trust fund case supports the view that the prudent investor act offers greater flexibility to trustees. In Matter of Onbank & Trust Co., 649 N.Y.S.2d 592 (N.Y. App. Div. 1996), the court was asked to review the propriety of mutual funds investments made from funds in a common trust fund. Onbank & Trust, at 594. The court found that investments therein were not subject to the act because they had been made prior to January 1, 1995. Id. at 595, n. 1. In so doing, the court stated that investments in mutual funds would not be prohibited by the new prudent investor act. Id. at 595, n. 2.

In Matter of Siegel, 665 N.Y.S.2d 813 (N.Y. Sup. Ct. 1997), the court was asked to split a trust in two and relax the investment restrictions in the trust agreement. Siegel, at 814. In determining whether to loosen the restrictions, the court reviewed investment theory, and in so doing, stated

The prudent man standard (EPTL §11-2.2), in effect at the inception of the trust, categorized particular investments, such as certificates of deposit, as prudent. In contrast, the prudent investor standard (EPTL §11-2.3) now in effect judges prudence by reference to risk management and the underlying determination of the appropriate level of risk for a particular portfolio.

Id. at 815. The court ordered the trust split in two and permitted relaxed investment practices in accordance with New York's prudent investor act. Id.

Investments which would previously have been considered high-risk under the old standard, such as mutual funds, would now potentially be considered prudent in New York. In deciding whether, and how to invest social security benefits, the Administration and representative payees in should weigh the appropriate level of risk for those funds. According to the prudent investor act, factors to consider are the purposes and terms of the benefits received, current economic conditions, other resources of the beneficiary and the beneficiary's needs for liquidity and preservation of capital.

QUESTION #2 PRESENTED

Under State law, are parent payees permitted to invest the funds belonging to their minor children differently than other types of payees?

ANSWER

The law in all states and jurisdictions is silent on whether parents, as natural guardians, are permitted to invest funds belonging to their minor children differently than other payees.

In general, parents manage the property of their minor children. However, parents are frequently appointed legal guardian over their own children when large sums are involved. Where investing of funds is permitted, a parent-guardian's investment decisions will be subject to the same standards as other fiduciaries. It should be noted that New Jersey and Puerto Rico have statutory maximums for funds which parents may manage without a guardian being appointed. Case law in New York suggests that when large amounts are involved, a guardian will be appointed.

New Jersey state law

State law in New Jersey is silent as to whether a parent-payee can invest differently than other payees when amounts received are less than $5,000 per year. N.J. Stat. Ann. §3B:12-6 (1983) (payments of funds under $5000 per year for a minor may be given to parents). The courts and legislature suggest that a guardian should be appointed when the amount exceeds that threshold. Funds held on behalf of a minor must be used for maintenance and education, and preserved for the minor upon emancipation. Id. at §3B:12-8. Any investing that a parent-payee may do as guardian will be subject to those rules and New Jersey's prudent investor standard. See N.J. Stat. Ann. §3B:20-11.3.

In situations where the amount is over the $5,000 per annum limit, one court in New Jersey has denied a parent the ability to invest in vehicles lacking a guaranteed rate of return. In J.M.W. v. M.D. and F.B, 533 A.2d 401 (N.J. 1987), a mother proposed to invest $28,000 of paternity settlement of $30,000 into variable life insurance with a non-guaranteed return of 10.35%. J.M.W., at 404. The court reasoned that where, as in this case, no bond was required, there is no protection of the minor's funds when the investment does not have a guaranteed rate of return. It ordered that the funds remain in the interest bearing account. Id. at 405. This case suggests that New Jersey courts prefer parents to exercise safety over risk in making investment decisions.

Parents, when court-appointed guardians in New Jersey, are required to follow the same rules as a trustee would over a trust, and are subject to the prudent investor act.

The appointment of a guardian of the estate of a minor [] vests in him title as trustee to all property of this ward, presently held or thereafter acquired, including title to any property theretofore held for the ward by attorneys in fact. ...

N.J. Stat. Ann. §3B:12-38 (1983). This section of the New Jersey code is viewed as conferring upon guardians the power of fiduciaries. See Clapp and Black, New Jersey Practice vol. 7, Wills and Administration §1070 (1982) (“With respect to the estate of the ward, the guardian is a fiduciary for the ward”). New Jersey's prudent investor act expressly states a guardian is a fiduciary. See N.J.S.A. §3B:20-1b (1983).

Yet, even after a guardian has been appointed, the court still retains authority over the minor's funds. “If a guardian has been appointed as to the estate of a minor ... the court shall have full authority over the ward's estate, and all matters relating thereto.” Id. at §3B:12-36.

Courts oversee and can intervene in the management of the minor's property even when it is a parent who is appointed guardian. Matter of Mason, 701 A.2d 979, 984 (N.J. Super. Ct. Ch. Div. 1997) (court retains broad powers and far-reaching discretion, and can intervene into the management of incompetent's estate under the doctrine of parens patriae); see e.g., J.M.W. v. M.D. and F.B., 533 A.2d 401, 405 (N.J. 1987) (court declined to allow mother ability to invest funds and instead ordered $400 per month withdrawal of paternity settlement proceeds for support of minor).

QUESTION #3 PRESENTED

What are the rules followed by trustees?

ANSWER

In all jurisdictions, trustees must first follow the terms and directions of the trust. Beyond that, trustees in New York and New Jersey will be subject to the standards of conduct found in each state's prudent investor act. Trustees in the Virgin Islands will be subject to the “prudent man” rule and where local law is silent, trustees may look to the Restatement of Trusts for further guidance. Trustees in Puerto Rico will be subject to its statutes creating and regulating trusts, and where Puerto Rican law is insufficient to resolve the matter, Puerto Rican statutes permit trustees to be further guided by concepts and principles of common law. The Restatement of Trusts embodies the common law, and the foundation for the UPIA.

New Jersey Trustee Rules

Under New Jersey trust law, trustees are fiduciaries of the “trust estate or trust assets [defined as] money or other property entrusted to a fiduciary.” N.J.Stat.Ann. § 3B:20-1. New Jersey statutes contain miscellaneous rules for a trustee to use as guidance in making investment decisions. For example, trustees are permitted to rely on financial publications. Id. at § 3B:20-2. They are also permitted to apply to the court in the event that investments or retention of investments would defeat the estate in whole or part. Id. at §3B:20-9. They can only incur costs that are appropriate and reasonable. Id. at §3B:11-8. And they can delegate investment or management functions. Id. at §11.10.

However, as above New Jersey has enacted the UPIA. Id. at §3B:20-11.2. Therefore, trustees owe a duty to the beneficiaries to comply with New Jersey's version of the UPIA. Id. at §11.2a. As discussed above, that act does not specify types of investments that are permitted or prohibited as prudent or imprudent. Trustees of trusts in New Jersey containing social security benefits would be subject to the standards of this act.

The terms and provisions of the governing instrument however, will still control. “The prudent investor rule is a default rule that may be expanded, restricted, eliminated, or otherwise altered by express provisions of the trust instrument.” Id. at §11.2b. Insofar as a trustee complies with those provisions, he will not be found liable. If necessary, a court can order or authorize a trustee to deviate from the express provisions. Id. Thus, the governing instrument has primary control.

Under the state law of New Jersey, a trust arrangement could arise in cases where social security benefits are paid to a representative payee for the benefit of a third person. The benefits themselves become the trust assets and the representative payee may be viewed as the trustee. In such situations, the trustee's investment decisions could be dictated by a governing instrument. The governing instrument could expand, restrict, eliminate or otherwise alter the prudent investor standard.

_1/ In New York, the term trustee includes “personal representative, trustee, guardian, donee of a power during minority, guardian under article eighty-one of the mental hygiene law, committee of the property of an incompetent person, and conservator of the property of a conservatee.” EPTL §11-2.3(e)(1).

_2/ New Jersey's “Prudent Investor Act” is a standard of conduct for “fiduciaries,” defined as “an individual or corporation authorized to act as a trustee, personal representative, guardian, and every other person or corporation charged with the duty of administering a trust estate.” N.J.S.A. §3B:20-1b.

_3/ In Will of Maxwell, 704 A.2d 49 (N.J. Super. Ct.1997), the Superior Court of New Jersey held that trust fiduciaries are governed by standards set forth in New Jersey's prudent investment law, at §3B:20-13 of the New Jersey code. Maxwell, at 60. The significance of this case is unclear however, as it was decided on December 24, 1997, nearly six months after the legislature's enactment of the “Prudent Investor Act” at §3B:20-11.3.


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PR 07240.033 - New Jersey - 01/06/2009
Batch run: 01/27/2009
Rev:01/06/2009