Everything comes from the document
A power of direction includes only those powers granted by the terms of the trust.
Section 736.1406(2), Florida Statutes.
That sentence does more work than its length suggests. The Act creates no powers. There is no statutory list of things a trust director may do, no default set of protector powers, and nothing that attaches to the title. A person called a trust protector in an instrument that grants them nothing has nothing.
It also means the first question in any directed trust dispute is a reading question about what exactly was granted. Under section 736.1409(3) a directed trustee must determine whether a direction is within the scope of the director’s power before complying, and that determination is made against this sentence.
The penumbra
A trust director may exercise any further power appropriate to the exercise or nonexercise of a power of direction granted to the trust director under subsection (1)
Section 736.1406(3)(a), Florida Statutes.
A power to direct investments is useless without the ability to obtain information, instruct the trustee on mechanics, and take the ordinary steps that make a decision effective. This paragraph supplies those without listing them.
The Act then refers back to this paragraph constantly. Nearly every operative provision in Part XIV speaks of a power of direction or further power under s. 736.1406(3)(a), so the penumbra carries the same duties and the same protections as the granted power itself.
The power the drafters chose not to write down
One question that arose in drafting was whether the further power language lets a director hire and pay lawyers. The article records the answer, and the decision not to say it in the statute.
The draftspersons discussed at length whether the further power language under F.S. §736.1406(3)(a) included the power of the trust director to hire attorneys and others to assist the trust director in performing its powers of direction. The draftspersons concluded that such a power to hire and direct payment of fees and costs for those engaged was implicit in the statutory language, as noted in the comments to the uniform act.
Rubin and Rubin, The Florida Bar Journal, March/April 2022.
And it goes further than assistance with the job.
The draftspersons also concluded that such powers extended to the hiring of attorneys in defense of a breach of trust action.
Rubin and Rubin, The Florida Bar Journal, March/April 2022.
We report that as what it is. It is the stated understanding of the committee that wrote the words, published by The Florida Bar. It is not statutory text and no court has adopted it. A beneficiary objecting to a director paying defence costs from the trust would be arguing against the drafters’ view, not against the statute.
The article records one Florida addition on the same subject, a provision in section 736.1416 subjecting a director’s fees and costs to the procedures and limitations that apply to a trustee under section 736.0802(10). The reasoning given is that no significant policy reason could be found to apply those limits to a trustee and not to a director.
More than one director
Where directors hold joint powers, they must act by majority decision unless the terms of the trust provide otherwise. There is no provision for deadlock in the section itself, so an even number of directors is a drafting decision worth thinking about.
Note also how this interacts with section 736.1408. A director holding a power jointly is judged as a cotrustee rather than as a sole trustee, which brings its own consequences for standing by while another fiduciary acts badly.
The two limits
Subsection (1) is expressed as subject to section 736.1407, which imposes the only substantive restrictions in the Part on what a director may do. A director is subject to the same rules as a trustee on a Medicaid payback provision required by federal law, and on a charitable interest in the trust, including notice to the Attorney General.
Both protect an interest outside the family, the State’s reimbursement claim and the charitable interest the Attorney General represents. Neither protects a beneficiary, which tells you something about what the drafters thought needed protecting from a power of direction.
No court has construed this section
Our review found no citing decision, on a Florida court filter and nationwide, at every precedential status.
The live question is the boundary of appropriate in subsection (3)(a). The drafters read it to include retaining counsel for a defence. Whether a court agrees, and whether it extends to a director who loses, is undecided. Our page on section 736.0816 covers the analogous line the Fourth District has already drawn for trustees, which allowed fees for defending accountings and refused them for a lost appeal.