Why the section exists
A directed trust divides authority. A trust director decides something, and the trustee carries it out. If the trustee also had to supervise the director, the division would be a fiction and the trustee would be carrying the whole risk anyway, which is precisely what the arrangement was meant to avoid.
So the Act removes the duty.
(a) A trustee does not have a duty to:
1. Monitor a trust director; or
2. Inform or give advice to a settlor, beneficiary, trustee, or trust director concerning an instance in which the trustee might have acted differently from the trust director.
Section 736.1411(1), Florida Statutes.
Subsection (2) is the mirror image for a trust director in relation to a trustee or another director.
Notice how far the second limb goes. It is not only that the trustee need not watch. The trustee need not tell anyone that it would have done things differently. A corporate trustee that thinks the director’s investment direction is poor has no statutory duty to say so, to the beneficiaries or to anyone else.
This is the provision a beneficiary will like least, and it is the one that makes the structure work. We would rather say that plainly than let a reader discover it after something has gone wrong.
The no good deed clause
By taking an action described in paragraph (a), a trustee does not assume the duty excluded by paragraph (a).
Section 736.1411(1)(b), Florida Statutes. Paragraph (2)(b) says the same for a trust director.
This is short and it is well judged. Without it, a trustee who once raised a concern would face the argument that it had assumed a continuing duty to monitor, and the safe course would be to say nothing ever.
The article by the Act’s drafting chair states the point.
The provision does not bar a trustee or trust director from doing any of the foregoing, and if done, the actor does not assume a duty to continue to do so in the future.
Rubin and Rubin, The Florida Bar Journal, March/April 2022.
Volunteering is permitted and costs nothing. A trustee that spots a problem may raise it, once, without buying an obligation.
It is a default, and that is the drafting point
Both subsections open with unless the terms of a trust provide otherwise. A settlor who wants a monitoring duty can create one.
That is worth knowing on both sides of the table. If you are creating a directed trust and want the corporate trustee to keep an eye on a family member holding a power of direction, the statute will not do it for you and the instrument must say so. If you are a beneficiary asking why nobody noticed, the first question is whether the trust displaced this default.
How it fits with the rest of the Part
The section is drafted as an override and names what it overrides. Subsection (1) operates notwithstanding section 736.1409(1), the directed trustee’s duty to take reasonable action. Subsection (2) operates notwithstanding section 736.1408(1), the trust director’s fiduciary duty.
So the reasonable action duty survives, and the fiduciary duty survives, but neither carries a monitoring obligation with it.
Read this alongside section 736.141, which is its counterweight. That section requires trustee and director to provide information to each other where it is reasonably related to the other’s powers or duties, and both of its duties are expressly subject to this section. The result is a deliberate settlement, a duty to share what you have, and no duty to go looking.
No court has construed this section
Our review found no citing decision, on a Florida court filter and nationwide, at every precedential status.
The question that will eventually be litigated is visible in the text. The trustee owes no duty to monitor, but under section 736.1409(1) it must take reasonable action to comply, and under section 736.1409(3) it must determine whether a direction is within the director’s power. Working out where the scope check ends and prohibited monitoring begins is the live problem, and this section does not answer it.
The 2022 amendment to this section came in a reviser’s bill, so it is technical rather than substantive.