§ 75-7-906. Investment direction.

(1) For purposes of this section, "investment direction" means a direction that is binding on the trustee, except for an investment direction given by a settlor as described in Subsection (2) to do any of the following with respect to an investment:

(a) retention;

(b) purchase;

(c) sale;

(d) exchange;

(e) tender; or

(f) any other transaction affecting ownership in the investment.

(2)

(a) During the time period that a trust is revocable, the trustee may follow any investment direction of the settlor, including an investment direction that:

(i) is manifestly contrary to the terms of the trust; or

(ii) seriously breaches a fiduciary duty to the beneficiaries.

(b) The trustee is not liable for any loss resulting from following an investment direction described in Subsection (2)(a).

(3) If the terms of a trust authorize a person to give investment direction to the trustee, the person authorized to give investment direction:

(a) is presumptively a fiduciary only with respect to an investment direction that the person gives to the trustee;

(b) is required to act in good faith with regard to:

(i) the purposes of the trust; and

(ii) the interests of the beneficiaries; and

(c) is liable for any loss that results from breach of the fiduciary duty only with respect to an investment direction that the person gives to the trustee.

(4) Except in cases of willful misconduct or gross negligence, a trustee is not liable for any loss that results from following an investment direction if:

(a) the terms of a trust authorizes a person to give the investment direction to the trustee; and

(b) the trustee acts in accordance with the investment direction given by a person described in Subsection (4)(a).

(5) If the terms of a trust require another person's approval or consent to an investment decision of the trustee:

(a) the person from whom approval or consent is required:

(i) is presumptively a fiduciary;

(ii) is required to act in good faith with regard to:

(A) the purposes of the trust; and

(B) the interests of the beneficiaries; and

(iii) is liable for any loss that results from breach of the fiduciary duty; and

(b) except in cases of willful misconduct or gross negligence, the trustee is not liable for any loss resulting from any act not taken as a result of the person's failure to respond to a request for approval or consent.

Enacted by Chapter 89, 2004 General Session