55-1B-12. Powers and discretions of family advisor.
The powers and discretions of a family advisor are as provided in the governing instrument or by court order and may be exercised or not exercised, in the best interests of the trust, in the sole and absolute discretion of the family advisor. The powers and discretions may only include the following:
(1)Remove and appoint a trustee, a fiduciary provided for in the governing trust instrument, trust advisor, investment committee member, or distribution committee member;
(2)Appoint a trust protector, or a family advisor;
(3)Advise the trustee on matters concerning any beneficiary; receive trust accountings, investment reports, and other information from the trustee or to which a beneficiary is entitled; attend meetings whether in person or by any other means with the trustee, investment trust advisors, distribution trust advisors, or other advisors whether in person or by any means, electronic or otherwise; and to consult with a fiduciary regarding both fiduciary and nonfiduciary matters or actions, all without any power or discretion to take any action as a fiduciary; or
(4)Provide direction regarding notification of qualified beneficiaries pursuant to §55-2-13.
A family advisor is not required to exercise any powers or discretions under any circumstances. Every action or inaction by a family advisor is a nonfiduciary action or inaction and a family advisor is absolutely excluded from liability to any other person for an action or inaction as a family advisor. A court may review a family advisor's exercise of the powers described in subdivisions (1), (2), and (4) only if the family advisor acts dishonestly or with an improper motive but may not review a family advisor's failure to exercise any powers. A reasonableness standard may not be applied to any action or inaction of a family advisor. Other than for the two circumstances listed above, a court has no jurisdiction to review a family advisor's action or inaction.
A family advisor is entitled to compensation as provided in the governing instrument. If the governing instrument does not provide for or establish compensation, a family advisor is entitled to reasonable compensation for the exercise of the powers and discretions granted to the family advisor pursuant to this chapter.
Source: SL 2016, ch 231, §18; SL 2020, ch 206, § 11.
Structure South Dakota Codified Laws
Title 55 - Fiduciaries and Trusts
Section 55-1B-1 - Definition of terms.
Section 55-1B-3 - Death of grantor.
Section 55-1B-4 - Trust advisor as fiduciary.
Section 55-1B-5 - Excluded fiduciary's liability for loss if trust protector appointed.
Section 55-1B-6 - Powers and discretions of trust protector.
Section 55-1B-7 - Submission to court jurisdiction--Effect on trust advisor or trust protector.
Section 55-1B-8 - Powers of trust protector incorporated by reference in will or trust instrument.
Section 55-1B-10 - Powers and discretions of investment trust advisor.
Section 55-1B-11 - Powers and discretions of distribution trust advisor.
Section 55-1B-12 - Powers and discretions of family advisor.