The backstop for the whole Part
Part III lets various people speak for others. This section is what happens when none of them can, or when the one who can should not be trusted with it.
If the court determines that an interest is not represented under this part, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown. If not precluded by a conflict of interest, a representative may be appointed to represent several persons or interests.
Section 736.0305(1), Florida Statutes.
There are two independent triggers and the second is the generous one. The first is straightforward. Nobody in Part III can represent this interest. The second does not require any gap at all. It is enough that the representation which is available might be inadequate.
Read that against section 736.0303, where a parent may represent a minor child. If the parent has interests of their own in the trust, the available representation might be inadequate, and this section is open without anyone having to prove an actual conflict.
The part that makes deals possible
Subsection (2) is short and it is the reason this section matters commercially.
A representative may act on behalf of the individual represented with respect to any matter arising under this code, whether or not a judicial proceeding concerning the trust is pending.
Section 736.0305(2), Florida Statutes.
No lawsuit is required. A representative appointed under this section can consent, receive notice and act on any matter under the Trust Code, with no proceeding on foot.
That is what allows a nonjudicial settlement agreement to be made binding on unborn or unfindable beneficiaries. Without it, the presence of a single unborn interest would push every settlement into court. With it, one application produces a representative and the rest of the matter can be resolved around a table.
A permission worth flagging
In making decisions, a representative may consider general benefits accruing to the living members of the represented individual’s family.
Section 736.0305(3), Florida Statutes.
This deserves a moment because it cuts against the instinct most people bring to fiduciary questions. A representative is not confined to what is narrowly best for the represented person considered alone. They may weigh benefits flowing to the living members of that person’s family.
The justification is practical. An unborn beneficiary’s interests are hard to identify in isolation, and a settlement that strengthens the family’s position generally may serve them better than one that maximises a share. But it is a real widening of the lens, the verb is permissive rather than mandatory, and nothing tells you how far it goes when family benefit and individual benefit diverge.
No Florida court has construed this section
A search returns no citing documents at all. That is true of this section and of three of the four others in Part III.
So the questions sit open. What makes representation might be inadequate. Whether the court can appoint on its own motion or only on application. What standard governs the representative’s decisions, given that subsection (3) permits family wide reasoning and nothing states a duty. And whether a person bound through an appointed representative can attack the outcome later.
None of that stops the section being used, and it is used constantly. It does mean that an appointment order is worth drafting carefully, because the order will be doing work the statute leaves undone.