Powers of Fiduciaries

SECTION 18-4-26

§ 18-4-26. Powers of fiduciaries in connection with environmental laws.

(a) In addition to the powers, rights, and remedies which may be set forth in any will, trust, or other document which is the source of authority, in which no provision is made to the contrary, any fiduciary as defined according to § 18-4-15(a)(2) shall be deemed to have the following powers, rights, and remedies to exercise, in addition to any other power he, she, or it may lawfully have in his, her, or its discretion, or if a corporation in the discretion of its duly authorized officer or committee:

(1) To inspect and monitor property to which the fiduciary takes legal title (including interests in sole proprietorships, partnerships, or corporations and any assets owned by these business enterprises) or over which a fiduciary may exercise his, her, or its control, for the purpose of determining compliance with environmental laws affecting the property, and to respond to any actual or threatened violation of any environmental laws affecting the property held or controlled by the fiduciary;

(2) To take, on behalf of an estate, trust, person, or business, any action necessary to prevent, abate, or otherwise remedy any actual or threatened violation of any environmental laws affecting property held or controlled by the fiduciary, either before or after the initiation of an enforcement action by any government body;

(3) To refuse to accept property in trust if the fiduciary determines that any property to be donated to a trust either is contaminated by any hazardous substances, or the property is being used or has been used for any activities directly or indirectly involving hazardous substances, which could result in liability to the trust, estate, person, or business or otherwise impair the value of the assets held or controlled in the trust;

(4) To settle or compromise, at any time, any and all claims against the estate, trust, person, or business which may be asserted by any governmental body or private party, involving the alleged violation of any environmental laws affecting property held by the estate or trust or owned by the person or business; and

(5) To disclaim any power granted by any document or any statute or rule of law which, in the sole discretion of the fiduciary, may cause the fiduciary to incur personal liability under any environmental laws.

(b) For purposes of this section, "environmental laws" mean any federal, state, or local law, rule, regulation, or ordinance relating to protection of the environment or human health. For purposes of this section, "hazardous substances" mean any substances defined as hazardous or toxic or otherwise regulated by any environmental laws.

(c) The fiduciary shall be entitled to charge the reasonable cost of any inspection, insurance, review, abatement, response, or cleanup, or any other remedial action, as authorized in this section, against the income or principal of the estate, trust, personal estate, or business assets and shall not be personally responsible for those costs. The fiduciary shall not be personally liable to any beneficiary or any other party for any decrease in value or exhaustion of assets by reason of the fiduciary's reasonable compliance with any environmental laws, specifically including any reporting requirements under those laws.

(d) The provisions of this section shall apply to all fiduciary relationships now in existence or subsequently created, and to the fiduciary actions or inactions occurring after July 21, 1992.

History of Section.
(P.L. 1992, ch. 421, § 1.)