Fiduciary Duties and Malfeasance

A “fiduciary” is someone who is charged with acting in the best interest of someone else; in other words, they are not supposed to act with self interest.

However, it is difficult for many people (especially non-professionals) to not act in some form of self interest. Often the acts of self interest are small, making it economically ineffecient to challenge. However, where a fiduciary has stolen, has failed to treat beneficiaries fairly and equally, or is causing damage, litigation may be necessary to hold the fiduciary responsible, and possibly to get them removed.

Because of the lack of judicial oversight in trust administration, fiduciary malfeasance is most common with trusts. However, court-appointed fiduciaries also can be held responsible for damages and/or removed.

Although technically not an issue of fiduciary malfeasance, Court’s will hear challenges to the competency and fitness of a proposed fiduciary, such as an executor, conservator or guardian; and in some cases, the Court will appoint an independent professional to be the fiduciary. In these cases, challenging the appointment may be the best option.

A fiduciary needs good legal representation and should not act without consulting their lawyer. If a fiduciary follows legal advice, they will be able to understand and act consistently with their fiduciary duties and thereby avoid costly and emotionally upsetting litigation.

An experienced attorney can determine what legal claims made be available and, if necessary, assist in the removal of a bad trustee.

If you have a question about your legal rights, or wish to speak to an attorney about your situation, please call us today at 510-663-9240, or contact us online to discuss your legal rights.