fiduciary

/fad(y)uwsh(iy)ary/

The term is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. A person having duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking. As an adjective it means of the nature of a trust; having the characteristics of a trust; analogous to a trust; relating to or founded upon a trust or confidence. A term to refer to a person having duties involving good faith, trust, special confidence, and candor towards another.

A fiduciary "includes such relationships as executor, administrator, trustee, and guardian." ABA Code of Judicial Conduct, Canon 3C(3)(b).

A lawyer is also in a fiduciary relationship with the client. A person or institution who manages money or property for another and who must exercise a standard of care in such management activity imposed by law or contract; e.g. executor of estate; receiver in bankruptcy; trustee. A trustee, for example, possesses a fiduciary responsibility to the beneficiaries of the trust to follow the terms of the trust and the requirements of applicable state law.

A breach of fiduciary responsibility would make the trustee liable to the beneficiaries for any damage caused by such breach. The status of being a fiduciary gives rise to certain legal incidents and obligations, including the prohibition against investing the money or property in investments which are speculative or otherwise imprudent. Many states have adopted the Uniform Fiduciaries Act, and the Uniform Management of Institutional Funds Act.

See also fiduciary capacity

- fiduciary or confidential relation

@ foreign fiduciary

A trustee, executor, administrator, guardian or conservator appointed by a jurisdiction other than the one in which he is acting

@ fiduciary bond

Type of surety bond required by court to be filed by trustees, administrators, executors, guardians, and conservators to insure proper performance of their duties

@ fiduciary capacity

One is said to act in a "fiduciary capacity" or to receive money or contract a debt in a "fiduciary capacity," when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part. The term is not restricted to technical or express trusts, but includes also such offices or relations as those of an attorney at law, a guardian, executor, or broker, a director of a corporation, and a public officer

@ fiduciary contract

An agreement by which a person delivers a thing to another on the condition that he will restore it to him

@ fiduciary debt

A debt founded on or arising from some confidence or trust as distinguished from a "debt" founded simply on contract. Montgomery v. Phillips Petroleum Co., Tex.Civ.App., 49 S.W.2d 967, 973

@ fiduciary duty

A duty to act for someone else's benefit, while subordinating one's personal interests to that of the other person. It is the highest standard of duty implied by law (e.g., trustee, guardian)

@ fiduciary heir

The Roman laws called a fiduciary heir the person who was instituted heir, and who was charged to deliver the succession to a person designated by the testament

@ fiduciary relation

@ fiduciary or confidential relation

fiduciary or confidential relation

A very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. One founded on trust or confidence reposed by one person in the integrity and fidelity of another. Such relationship arises whenever confidence is reposed on one side, and domination and influence result on the other; the relation can be legal, social, domestic, or merely personal. Heilman's Estate, Matter of, 37 Ill.App.3d 390, 345 N.E.2d 536, 540.

A relation subsisting between two persons in regard to a business, contract, or piece of property, or in regard to the general business or estate of one of them, of such a character that each must repose trust and confidence in the other and must exercise a corresponding degree of fairness and good faith. Out of such a relation, the law raises the rule that neither party may exert influence or pressure upon the other, take selfish advantage of his trust, or deal with the subject-matter of the trust in such a way as to benefit himself or prejudice the other except in the exercise of the utmost good faith and with the full knowledge and consent of that other, business shrewdness, hard bargaining, and astuteness to take advantage of the forgetfulness or negligence of another being totally prohibited as between persons standing in such a relation to each other. Examples of fiduciary relations are those existing between attorney and client, guardian and ward, principal and agent, executor and heir, trustee and cestui que trust, landlord and tenant, etc.

See also confidential communications; confidential relation

@ fiduciary shield doctrine

Equitable doctrine which holds that actions taken by individual defendants solely in their capacity as corporate officers could not provide the basis for the exercise of jurisdiction over their persons, absent circumstances making such exercise appropriate. This doctrine confers jurisdictional immunity upon corporate officials, even though their conduct be tortious as long as the actions taken were in the interests of the corporation and not purely personal and the corporation is not merely a shell for the individual and does not lack sufficient assets to respond. Totalplan Corp. of America v. Lure Camera Ltd., D.C.N.Y., 613 F.Supp. 451, 457

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