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2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 12 - Trusts
Article 1 - General Provisions
§ 53-12-8. (For Effective Date, See note.) Notice to Person Permitted to Bind Another Person; Consent on Behalf of Another Person; Representation of Others
Universal Citation: GA Code § 53-12-8 (2020)
- Notice to a person who may represent and bind another person under this Code section shall have the same effect as if notice were given directly to such other person.
- The consent of a person who may represent and bind another person under this Code section shall be binding on the person represented unless the person represented objects to such representation before such consent would otherwise have become effective. Consent shall include, but shall not be limited to, an action related to the granting of powers to a trustee, modification or termination of a trust, a trustee's duty to report, entry into a binding nonjudicial settlement agreement, a trustee's compensation, the conversion of a trust to a unitrust, the appointment, resignation, or removal of a trustee, and other similar actions.
- Except as otherwise provided in Code Section 53-12-61, a person who under this Code section may represent a settlor who lacks capacity may receive notice and give a binding consent on such settlor's behalf.
- A settlor may not represent and bind a beneficiary under this Code section with respect to the termination or modification of a trust under Article 4 of this chapter.
- To the extent there is no conflict of interest between the holder of a power of appointment and the persons represented with respect to the particular question or dispute, such holder may represent and bind persons whose interests are as permissible appointees, as takers in default, or are otherwise subject to the power.
- To the extent there is no conflict of interest between the representative and the person represented or among those being represented with respect to a particular question or dispute:
- A conservator may represent and bind the estate that the conservator controls;
- A guardian may represent and bind his or her ward if a conservator of such ward's estate has not been appointed;
- An agent having authority to act with respect to the particular question or dispute may represent and bind the principal;
- A trustee may represent and bind the beneficiaries of the trust;
- A trust director may represent and bind the beneficiaries of the trust on a question or dispute relating to the trust director's powers of direction;
- A person designated in the trust instrument to receive notice and provide consent on behalf of a beneficiary may represent and bind a beneficiary;
- A personal representative of a decedent's estate may represent and bind persons interested in such estate; and
- An ancestor may represent and bind an ancestor's minor or unborn descendant if a conservator or guardian for such descendant has not been appointed.
- Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another having a substantially identical interest with respect to a particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented with respect to such particular question or dispute.
- A person who on the date of determination would be eligible to receive distributions of income or principal from the trust upon the termination of the interests of all persons then currently eligible to receive distributions of income or principal may represent and bind contingent successor beneficiaries with respect to matters in which there is no conflict of interest between the representative and the persons represented with respect to a particular question or dispute.
- A charitable entity may represent and bind another person and be represented by a person under this Code section in the same manner as an individual.
- The representative of a person represented under this Code section may represent and bind any other person who could be represented under this Code section by the person being represented by the representative if the person being represented were living and sui juris, but only to the extent there is no conflict of interest between the representative and such other person or among those being represented with respect to a particular question or dispute.
- Any person whose interests would be affected may request that the court determine whether an interest is represented under this Code section or whether the representation is adequate. If the court determines that an interest is not represented under this Code section, or that the otherwise available representation might be inadequate, the court may appoint a representative to receive notice, give consent, and otherwise represent, bind, and act on behalf of a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable. A representative may be appointed to represent several persons or interests. A representative may act on behalf of the individual represented with respect to any matter arising under this chapter, regardless of whether a judicial proceeding concerning the trust is pending. In making decisions, a representative may consider the general benefit accruing to the living members of the individual's family.
- The interests of unascertainable charitable beneficiaries of a trust that is not a charitable trust shall be represented as provided in Code Section 53-12-174 for the beneficiaries under a charitable trust.
(Code 1981, §53-12-8, enacted by Ga. L. 2011, p. 551, § 8/SB 134; Ga. L. 2018, p. 262, § 4/HB 121; Ga. L. 2020, p. 377, § 1-72/HB 865.)Law reviews.
- For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 70 Mercer L. Rev. 275 (2018).
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