What may be delegated
A trustee may delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances, including investment functions pursuant to s. 518.112.
Section 736.0807(1), Florida Statutes.
The test is comparative and it produces a result people find counterintuitive. What may properly be delegated depends on the skills of this trustee. A professional appointed for investment expertise has a narrower field of proper delegation than a family member with none, because the prudent trustee of comparable skills would have done more of it personally. Read alongside section 736.0806, expertise is not only a standard to meet. It is also a reason certain work cannot be handed away.
Three conditions, and the third is continuing
Subsection (1) requires reasonable care, skill and caution in three things.
(a) Selecting an agent.
(b) Establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust.
(c) Reviewing the agent’s actions periodically, in order to monitor the agent’s performance and compliance with the terms of the delegation.
Section 736.0807(1)(a) to (c), Florida Statutes.
Paragraph (a) is the one everybody does. Paragraph (b) is the one lawyers do. Paragraph (c) is the one that fails.
It is written as an ongoing obligation. Reviewing periodically, to monitor performance and compliance with the terms of the delegation. A trustee who chose a reputable firm, signed a sensible engagement letter, and then left it alone for six years has satisfied (a) and (b) and not (c). And because the safe harbour requires compliance with subsection (1) as a whole, failing one paragraph forfeits the protection entirely.
The agent owes a duty to the trust
In performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation.
Section 736.0807(2), Florida Statutes.
That is a short provision with a long reach. The agent’s duty runs to the trust, not merely to the trustee who hired them. It means a properly delegated function does not leave the trust without a remedy. If the trustee is protected by subsection (3), the agent is the one carrying the duty.
How a beneficiary actually enforces that has not been worked out in any Florida decision construing this section, and it is a real gap. The duty is stated; the mechanism is not.
The safe harbour
A trustee who complies with subsection (1) and, when investment functions are delegated, s. 518.112 is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated.
Section 736.0807(3), Florida Statutes.
This is genuine protection and it is conditional protection. Note the two triggers. One is compliance with subsection (1) in every part. The other, where investments are delegated, is compliance with section 518.112 as well. A trustee who delegated investment management without meeting the Prudent Investor Act requirements does not reach the harbour through this section alone.
This is also the only section in this group the Legislature has revisited, amending it in 2009 and again in 2013. A decision applying an older version would need checking against the text in force, though as it happens there are none.
No Florida court has construed this section
Our review located no decision citing section 736.0807 in the Florida state courts, the Florida federal district and bankruptcy courts, or the Eleventh Circuit, searching every precedential status rather than the default view.
For a provision that decides who pays when a professional adviser gets it wrong, that is a striking silence, and it leaves the practical questions open. How often periodic review must happen. What a trustee must actually do to monitor compliance as opposed to performance. Whether a trustee who delegated to an affiliate of their own institution has selected with reasonable care. And whether the subsection (2) duty gives a beneficiary a direct claim against the agent or only a claim the trustee may bring.
Frequently Asked Questions
Can a Florida trustee delegate their duties?
Some of them. Section 736.0807(1) permits a trustee to delegate duties and powers that a prudent trustee of comparable skills could properly delegate under the circumstances, including investment functions under section 518.112. The measure is comparative, so a highly skilled trustee may properly delegate less than an unskilled one.
Is a trustee liable for a bad adviser?
Not if the statute was followed. Subsection (3) provides that a trustee who complies with subsection (1), and with section 518.112 where investment functions are delegated, is not liable to the beneficiaries or to the trust for an action of the agent to whom the function was delegated. The protection depends entirely on that compliance.
What are the three requirements?
Subsection (1) requires reasonable care, skill and caution in selecting an agent; in establishing the scope and terms of the delegation, consistent with the purposes and terms of the trust; and in reviewing the agent’s actions periodically, in order to monitor the agent’s performance and compliance with the terms of the delegation. The third is a continuing obligation, not a one time act.
Can a beneficiary sue the adviser directly?
The statute contemplates a duty running that way. Subsection (2) provides that in performing a delegated function, an agent owes a duty to the trust to exercise reasonable care to comply with the terms of the delegation. Whether and how a beneficiary enforces that duty has not been decided by any Florida court construing this section.
Does this cover investment management?
Yes, expressly, and it routes through a second statute. Investment functions may be delegated pursuant to section 518.112, the Florida Prudent Investor Act provision, and the safe harbour in subsection (3) requires compliance with that section as well where investments are involved.
Common Situations
An investment adviser lost money. The safe harbour may protect the trustee, but only on compliance with all of subsection (1) and with section 518.112.
The trustee has not reviewed the adviser in years. Paragraph (1)(c) requires periodic review, and failing it forfeits the protection in subsection (3).
A professional trustee delegated the very thing they were hired for. What may properly be delegated is measured against a prudent trustee of comparable skills.
You want to pursue the adviser rather than the trustee. Subsection (2) says the agent owes a duty to the trust. How a beneficiary enforces it is undecided in Florida.
Sources of Law
- Section 736.0807, Florida Statutes (2025). Enacted by s. 8, ch. 2006-217; amended by s. 6, ch. 2009-117 and s. 13, ch. 2013-172.
- Section 518.112, Florida Statutes, on delegation of investment functions.
- Section 736.0806, Florida Statutes, on a trustee’s special skills.
- Our review searched the Florida Supreme Court, the Florida District Courts of Appeal, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 14, 2026, requesting every precedential status rather than the default view. We report a nil result as our own review and not as a certainty. Searching by section number is an imperfect tool in two known ways. It misses decisions that discuss a statute without naming it, and we have confirmed at least one Florida decision that names a section yet does not appear in a search for that number.
- Decisions discussed here are published opinions in other parties’ cases. They are not matters handled by this firm and they predict nothing about any reader’s case. No commercial citator pass has been run on this research.
Updated on August 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and published court decisions, not legal advice, and no attorney-client relationship is created. Reading this page does not make us your lawyers. Please do not send confidential details until we have connected.
