The paper begins with a brief recap of recent fiduciary surcharge cases in which defendants were found in breach of their duties because of failure to establish a credible basis upon which to exercise investment discretion. In several cases, the lack of a well-articulated, fully documented, and suitable investment strategy was, in itself, found to be a fiduciary breach. The paper also works through the question: ‘what constitutes a prudent decision making process?’ — i.e., allows for the exercise of reasonable (and defensible) trustee discretion.
A central thesis is that prudence cannot be based on any single path, formula, checklist or academically sanctioned method. The world of trusts and investments is too heterogeneous and too complex to accommodate simplistic black-and-white investment or administrative prescriptions. This said, however, wealth stewardship requires a trustee to demonstrate skill, rather than merely good intentions. Prudence requires an active, ongoing and critical examination of the investment decision-making process to identify both successful and unsuccessful aspects. The paper argues that failure to establish reasonable self-diagnostics is strong evidence of gross negligence. Similarly, pursuing investment programs that do not work is strong evidence of bad faith. Thus, a crucial aspect of documenting administrative prudence is understanding the importance of techniques used by the trustee to self evaluate its internal wealth management process. If prudence is a process how does the trustee monitor the process, and how are results evaluated? Does the trustee undertake investment tasks for which he lacks the requisite skill; and, therefore, the expectation of a successful outcome?