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The enumerated powers

A fiduciary has the powers the trust instrument confers and, except as the instrument limits them, the powers the statute enumerates, exercisable without court order and subject to the fiduciary duties (O.C.G.A. § 53-12-261). Georgia has no separate "general powers" section; the one list covers:

• To sell, exchange, grant options on, partition or otherwise dispose of property, at public or private sale; to invest and reinvest; to retain property.
• To manage real property and to lease; to form entities and to continue a farm or a business.
• To pay debts, taxes, the fiduciary's compensation and the expenses of collecting, caring for, administering and protecting the property; to receive additional property from any source.
• To borrow and to lend; to vote shares and hold securities in nominee form; to exercise conversion rights; to adjust, continue and foreclose obligations; to insure.
• To collect and receipt for rents and income; to employ and compensate attorneys, auditors, investment advisers and agents; to set reserves; to value property and distribute it in kind; to transfer property distributable to a beneficiary under a disability to a conservator, guardian or custodian.

Incorporation by reference

A will or trust instrument may incorporate any or all of the statutory powers by appropriate reference, as they existed when the instrument was signed, with the same effect as if set out verbatim; the settlor of a revocable trust, or a person authorized to modify it, may incorporate them as they exist at the incorporation; incorporation adds to, and does not limit, the fiduciary's common-law and statutory powers (O.C.G.A. § 53-12-263). An instrument that recites the older statutes the section names is read as it provides.

Discretion, and the standard that governs it

Notwithstanding the breadth of discretion the instrument grants — "absolute", "sole", "uncontrolled" — the trustee exercises a discretionary power in good faith (O.C.G.A. § 53-12-260), a rule the instrument cannot vary (§ 53-12-7). A trustee who is also a beneficiary, other than a settlor or donor, does not make discretionary distributions to themselves except in accordance with an ascertainable standard, does not make discretionary allocations between principal and income except in a fiduciary capacity, and does not make discretionary distributions to satisfy their own legal obligations of support; a power so limited may be exercised by the remaining trustees (§ 53-12-270). A trustee has no duty to investigate a beneficiary's resources before distributing (§ 53-12-245).

Delegation and cotrustees

A trustee may delegate investment and management functions that a prudent trustee of comparable skills could properly delegate, exercising reasonable care, skill and caution in selecting the agent, establishing the scope and terms of the delegation, and reviewing the agent's actions periodically; a trustee who complies is not liable for the agent's decisions (O.C.G.A. § 53-12-345). A power vested in two or more trustees is exercised only by their unanimous action, though a cotrustee may delegate ministerial acts to another; the remaining cotrustees act during a vacancy or a cotrustee's temporary inability (§ 53-12-204). A trustee answers for a cotrustee's breach only as § 53-12-305 provides.

The directed trust

Where the instrument grants a trust director a power of direction over the administration, investment, management or distribution of the trust (O.C.G.A. § 53-12-500, § 53-12-502), the directed trustee takes reasonable action to comply with the director's exercise or nonexercise of the power and is not liable for it, unless compliance would clearly constitute an act committed in bad faith, with which the trustee must not comply (§ 53-12-504(a)). The director has the fiduciary duty and liability of a trustee in a like position (§ 53-12-503); except as the instrument provides, the trustee has no duty to monitor, investigate or advise the director (§ 53-12-504(f)); the rules on office, compensation, resignation, removal and accounting apply to a director (§ 53-12-506).

Decanting: distributing to a second trust

Unless the original trust instrument expressly provides otherwise, a trustee other than a donor with discretionary authority to distribute income or principal may exercise it by distributing all or part of the principal to a second trust, independently or with court approval, within the section's limits — notice delivered at least 30 days before the proposed distribution, an instrument signed and acknowledged by the trustee and filed with the original trust's records, no extension of the perpetuities period, the limits of § 53-12-270 for a trustee-beneficiary, and the tax-qualification constraints the section states (O.C.G.A. § 53-12-62). A trustee may also release the power to adjust and convert to a unitrust on notice, with no written objection within 60 days (§ 53-12-362).

Dealing with banks and title companies: the certification of trust

The trustee may present a certification of trust to any person other than a beneficiary in lieu of the instrument: the trust's existence and date with any amendments, each settlor, each current trustee and how many must act, the relevant powers and their restrictions, revocability, how property should be titled, and that the transaction requires no other consent except as disclosed — signed by each trustee, stating that the trust has not been revoked, modified or amended in a way that would make it incorrect, without the dispositive provisions (O.C.G.A. § 53-12-280). The recipient may require the excerpts that designate the trustee and confer the power; a person who relies on it without knowledge that it is incorrect is protected, and a demand for the instrument not made in good faith carries damages. It may be recorded with the clerk of superior court.

When a licensed Georgia attorney is the right next call

Which powers the instrument confers, whether it limits a statutory power, how an ascertainable standard reads, and how a power of direction divides the work are questions of the instrument's words. TrusteeClear records what you read and shows the statute beside it; a licensed Georgia attorney of your choosing can read the instrument with you before a sale, a loan, a decanting or a distribution to yourself.