In Atty. Matthew Erskine’s article in Forbes, dated Oct. 5, 2022, several sentences from §9.27 of Loring and Rounds: A Trustee’s Handbook (2022) are quoted verbatim with due attribution. See https://www.forbes.com/sites/matthewerskine/2022/10/05/how-will-the-patagonia-perpetual-purpose-trust-terms-be-enforced/?sh=106620642508. The article is entitled “How Will the Patagonia’s Perpetual Purpose Trust Be Enforced?” The subject of both the article and the referenced section of the Handbook is the so-called purpose trust, a noncharitable property-management arrangement that has no beneficiaries. It is hard to see how an arrangement that fails to adhere to the “beneficiary principle” can be a true trust, there being no one who would have standing to seek enforcement of its terms. As for the state attorney general’s division of public charities, it is neither in the business of, nor equipped to, oversee such noncharitable undertakings. How about if the governing instrument were to designate a third-party enforcer as per §409 of the UTC? Assuming the enforcer is a fiduciary to whom then would his or her duties run? The UTC has no good answer to that critical question. If the enforcer is not a fiduciary then the terms of the “trust,” as a practical matter, are perversely unenforceable. A trust whose terms are unenforceable is not a true trust. In a nutshell this is the fiduciary conundrum inherent in the Uniform Trust Code’s version of the purpose trust. The above-referenced section of the Handbook, specifically §9.27, is reproduced in its entirety in the appendix below. The Handbook is available for purchase at https://law-store.wolterskluwer.com/s/product/loring-rounds-a-trustees-handbook-2022e-misb/01t4R00000OVWE4QAP.
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