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Identifying and dealing with a breach of fiduciary duty

After recently writing about the duties of a fiduciary, we wanted to follow up with a post on available remedies if there is a breach.

Those who serve as a trustee, personal representative for an estate or attorney-in-fact to manage financial affairs are in a position of trust and confidence. While in these important roles, fiduciaries are held to a high standard of good faith, fairness, honesty and loyalty to anyone dependant on them.

 

Examples of a breach of duty

Dave is listed as the trustee on a trust for a brother who has been suffering from addition issues for years. Dealing with some of his own financial difficulties, Dave decides to move some of the trust funds to his personal account to help him through a couple tough months.

This commingling of trust finds with personal funds can be a breach of duty. How it is uncovered? It might not be right away, but finances often get worse and not returning the purported “loan” could easily lead to accusations of impropriety.

In another scenario, an amateur day trader starts actively managing a trust's investment portfolio. She loses thousands of dollars before anyone finds out. Without the right oversight, risky investments can jeopardize trust funds and lead to issues.

For a personal representative, favoring certain beneficiaries over others can lead to conflict. And it may simply be the appearance of favoritism that sparks the discord.

Colorado law

There are several Colorado-specific fiduciary responsibility laws. If you suffer losses because another person has breached his or her fiduciary duty, there may be special rights of recovery. On the other hand, if you are serving in the role of a fiduciary, sloppy accounting and other practices can land you in hot water.

Avoid conflict caused by breach of fiduciary duties allegations by seeking counsel from a skilled probate attorney when questions arise.

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