The District of Columbia and the States of Virginia and West Virginia have adopted The Uniform Prudent Investor Act (UPIA) within their laws. The States of Delaware, Maryland and Pennsylvania follow “prudent investor” rules which are very similar to the UPIA.

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.

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.

In Pennsylvania and Virginia, a parent is the guardian of his or her child and, therefore, is bound by the same investment rules as trustees. The statutes and case laws in Delaware, the District of Columbia, Maryland, and West Virginia do not address what standard a “non-guardian” parent must follow when investing the property of his or her minor children.

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. 1. 

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

2. 2. 

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

3. 3. 

   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.

Virginia

Virginia has adopted the Uniform Prudent Investor Act, which requires a trustee to invest trust assets "as a prudent investor would by considering the purposes, terms, distribution requirements, and other circumstances of the trust". Va. Code Ann. § 26-45.4 (Michie 1999). The prudent investor rule may be expanded, restricted, eliminated, or otherwise altered by the provisions of the trust. Va. Code Ann. § 26-45.3 (Michie 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;

(7) Needs for liquidity, regularity of income and 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.

Va. Code Ann. § 26-45.4(C) (Michie 1999).

Pursuant to Virginia law, a trustee may invest in "any kind of property or type of investment consistent with the standards" of the Uniform Prudent Investor Act. Va. Code Ann. § 26-45.4(E) (Michie 1999). The following investments will be conclusively presumed to be prudent when made by any "fiduciary," including a trustee:

1) Obligations of the Commonwealth, its agencies and political subdivisions, subject to specific requirements;

(2) Obligations of the United States, subject to specific requirements; and

(3) Savings accounts, time deposits or certificates of deposit, subject to specific requirements.

Va. Code Ann. § 26-40.01(B) (Michie 1999). _1/

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 conserved funds.

Virginia

Trustees in Virginia must follow the same rules previously described for trustees in the District of Columbia. Va. Code Ann. §§ 26-45.4(D), (F); 26-45.5; 26-45.7; 26-45.8; 26-45.10 (Michie 1999).

PARENTS AS PAYEES

Virginia

In Virginia, a child's mother and father are "natural guardians" of the child. Va. Code Ann. § 31-1 (Michie 1999). Guardians are bound by the same investment rules as trustees. Va. Code Ann. § 8.01-2 (Michie 1999). Accordingly, a parent payee in Virginia is bound by the same rules previously described as applying to trustees in Virginia.

_1/ Additional investments are "conclusively presumed to have been prudent" when made in accordance with investments by the Virginia Resources Authority or pursuant to the Virginia Housing Development Authority Act. Va. Code Ann. §§ 26-40, 36-55.44, 62.1-221 (Michie 1999). This extensive list of investments set forth in Va. Code Ann. § 26-40 (Michie 1999) does not apply to investments by trustees, but may provide guidance in assessing whether investments not listed in Va. Code Ann. § 26-40.1(B) (Michie 1999) were prudent.