Transcript Presentation title: Frutiger 55 Roman, 14 pt.,, two lines

February 3, 2011
The Coordination Gap—Ordering Relationships in Multi-Participant Trusts
Stephen E. Parker, Managing Director, J.P.Morgan Private Bank
404.926.2504, [email protected]
©2007-10 Duncan Associates A&C, P.C.
and Anita M. Sarafa All rights reserved.
Why isn’t a traditional, all powerful trustee enough?
Wall Street Journal*
As trusts become more complex and investing strategies become more
sophisticated, more well-off families are using teams of multiple trustees and
advisors, each with very specific roles and responsibilities… Families are ‘slicing
and dicing’ trustee duties.
* July 12, 2007
1
A case many were waiting for . . . and may wish had never come
Facts of McLean (Mo.App. 1/26/2009):
• Trust funded with personal injury settlement proceeds for a quadriplegic beneficiary
• Trust granted a trust protector authority “in a fiduciary capacity” to remove and appoint
trustees
• Trust protector would not be liable for any action taken in good faith
• The trust protector did not remove trustees who were alleged to have inappropriately spent
trust funds and was sued by a successor trustee for failing to do so
• The plaintiff alleged that the trust protector breached his fiduciary duty and acted in bad
faith for
o Failing to monitor and report expenditures by the former trustees
o Failing to stop them from acting against the interests of the beneficiary, and
o Placing his loyalty to the trustees ahead of his loyalty to the beneficiary
• Trust protector moved for dismissal/summary judgment, asserting lack of a fiduciary duty
to do any of the foregoing
• Trial court granted summary judgment for the trust protector
2
The Appellate Court’s conclusions
• No case or statute in Missouri supplied the duties of the trust protector
• Duties must therefore arise from the language of the trust and the nature of the relationship
of the parties
• Trust did not specify how or when the trust protector was to carry out his “authority” to
remove trustees and appoint successors
• Trust only stated that trust protector’s “authority” was conferred in a “fiduciary capacity”,
implying at least the basic duties of undivided loyalty and confidentiality
• Trust stated trust protector not liable for “any action taken in good faith”, deemed a qualified
immunity from liability but “implying the existence of at least some duty of care”
• Material issues existed, requiring a remand, as to grantor’s intent as to
– whom the duty was owed, the beneficiary or the trust itself
– whether the trust protector was to exercise some sort of supervisory duties over the
trustees
3
Lessons learned from McLean:
• The role of a trust protector and other trust participants besides a trustee is never, and the
duty of care is often not, found in state statutes or caselaw
• Where not found in state law, the role and standards must be derived from the trust
instrument or less reliable evidence of the grantor’s intent
• Even where set forth in state law, the responsibilities and duty of care may not be the ones
desired by the settlor
• If the trust instrument and state law do not specify a trust participant’s role, whether he is a
fiduciary, duty of care and liability, far less reliable indicia of grantor intent will be resorted to
by a court, such as the “relationship of the parties” and the “purpose of the trust”
• If a trust with multiple trust participants fails to set forth whether a trust participant, even one
with a removal power—has a duty to monitor others or to provide other details of the intended
relationship among the trustee, protectors and trust advisors, bad things may happen
• The default duty of care and potential liability of trust participants, including the directed
trustee, will be unclear at best in most states or just not what the settlor wants
If this is the state of the law, then the sole assurance against misconstruction of a
grantor’s purpose in employing trust advisors and trust protectors is a clear
understanding of that purpose that can only be derived from carefully drafted trust
provisions governing all trust participants' actions and duties.
4
Why the trend toward multi-participant trusts?
• Desire to assign specialized roles for fiduciaries has a long history
(co-trustee legacy)
• Modern trust statutes grant trustees more authority and flexibility
• Sophisticated investment and financial management may require multiple experts
• Many families desire to retain significant decision-making functions
• Trustee risk management may encourage bifurcating trustee role
• Use of dynasty and other long-term trusts requires adaptability
• Emergence of dynamic, flexible trust laws in leading states
• Philosopher King shortage
• Control the family business, family office, private trust company or portfolio companies with
an advisor committee or family council instead of a single individual or institutional trustee
5
Our goals . . .
• Review the problems that can arise with multiple trust participants
• Identify the characteristics of a manageable multi-participant trust
• Review the current state of the law, focusing on uncertainties and gaps
• Demonstrate the essential role of knowledgeable and careful draftsmanship
• Provide drafting suggestions for creating a manageable, surprise-free multi-participant trust
6
A “coordination gap” among multiple trust participants
Goals of All Trust Administration:
• To accomplish the purposes of the trust and further the interests of the beneficiaries
Traditional Trustee Model:
• A single trustee exercising all the fiduciary and administrative powers granted by the trust to
accomplish these goals
Multiple Trust Participant Model:
• Multiple individuals or entities
o Who may or may not be fiduciaries,
o all of whom have specific, trust-instrument-assigned roles, responsibilities, authority
and duties (sometimes overlapping),
o who must together accomplish the purposes of the trust and further the interests of the
beneficiaries
7
Who are the various trust participants?
• Full trustee/Co-trustees
• Directed trustee
• Trust advisor
o Investment advisor/investment committee
o Distribution advisor/distribution committee
• Trust protector
o Trustee remover
o Trustee appointer
o Trust amender
8
Problems that have arisen with multi-participant trusts include:
1.
Lack of clarity regarding roles, responsibilities and authority
2.
Uncertainty as to duties, standards and liability
3.
Inadequate communication and coordination among trust participants
4.
Disharmony among participants
5.
Compensation and reimbursement uncertainty
6.
Unfilled vacancies
7.
Exposure to multi-jurisdictional taxation
8.
Unanticipated duties to monitor, report or correct misdeeds of other trust participants
9.
Joint decision-making without a process for doing so, i.e., no meetings, no bylaws, no rules
9
Elements of a well-functioning, multi-participant trust:
What’s required from each trust participant?
• To accomplish the purposes of the trust and further the interests of the beneficiaries, each
trust participant must:
o Understand his job
o Perform competently
o Document what he has done
o Let each other trust participant whose performance may be affected by his decision and
actions know what they have done/decided so the other participant can do their job
 Implement the decision made by the first trust participant
 Reflect the first participant’s actions and decisions in her own decision-making and other
actions affecting the trust and its beneficiaries
10
Elements of a well-functioning, multi-participant trust:
What’s required for each participant’s ability to fulfill her function?
• Communication among the trust participants (e.g., actions they have taken)
• Coordination among the trust participants (e.g., speaking with a consistent voice if possible,
investing and liquidating assets according to liquidity needs, taking a consistent view as to the
meaning of trust provisions)
• Filling vacancies and assuring performance of absent participant’s functions
• Time limits for a trust participant to vote on, consent to or veto an action and certainty as to
when a decision has actually been made
• Means for determining where a trust is being administered and the applicable law of
administration and tax laws, especially when trust participants are residing or acting in
multiple states
• Expeditious and competent out-of-court resolution of participant disagreements
11
Elements of a well-functioning, multi-participant trust:
What’s required for each participant to be willing to perform his function?
• Certainty as to and comfort with
o Whether the non-trustee participant is a fiduciary and the applicable duties and standards
for performance
o Whether a directed trustee or a non-trustee participant is free of responsibility for
performing or monitoring decisions assigned to another participant
o Possible exposures for the acts or omissions of another participant
o Whether a trustee or other participant must follow a direction that may violate
 the instrument,
 applicable law or
 the fiduciary responsibilities of either the directed or directing participant
o Whether decisions involving more than one participant must be made unanimously,
by majority vote or by any one of the empowered participants
o How a dissenting participant may cut off his liability
o The compensation and reimbursement of expenses due a participant
12
Are non-trustee trust participants fiduciaries?
Common Law
• Little difficulty concluding that co-trustees and directed trustees are fiduciaries at common law
• Cases, treatises, and restatements also conclude that a person empowered to control a
trustee is a fiduciary if the power is for the benefit of the beneficiaries
• Rights, duties, and liabilities depend on circumstances
Statutory Law
• Unless otherwise provided in the instrument:
o UTC §808: Anyone with a power to direct the trustee for someone else’s benefit is a
fiduciary and has fiduciary duties
o Non-Conforming UTC States: Trust advisors and protectors are fiduciaries to the extent
of the powers, duties, and discretions granted (e.g., NH and WY)
o Non-UTC States: If a person is given authority to direct, consent to, or disapprove a
fiduciary’s decision, such advisors are considered to be fiduciaries (e.g., DE and SD)
13
Co-trustees under common law
Role, responsibilities and decision-making same as single trustee
• Decision-making: Historically, unanimity required. Restatement (Third) reversed prior
versions, sanctioning a majority
• Allocation of responsibilities: Trust terms can give exclusive control over an area of trust
administration to one co-trustee. Others have no duty to participate unless “reason to
believe” a breach of trust will be committed
Compensation and reimbursement
• Ordinarily the same as for single trustees
Liability
• Generally joint and several liability
• Not liable for breach by a co-trustee, except in particular circumstances (e.g., improperly
delegated)
• Inactivity not a defense
• Dissenting co-trustee ordinarily protected
14
Co-trustees under statutory law
Role, responsibilities and decision-making
• UTC states (23 states):
o Cannot be passive
o Must exercise reasonable care to prevent a co-trustee from committing a serious breach
of trust and compel redress
o Decision-making by majority rule
o Remaining co-trustee (or majority) can act if one co-trustee is unavailable
o May not delegate to another trustee functions settlor expected trustees to perform jointly
o Non-UTC states and non-conforming UTC states:
o Some states require unanimity in decision-making; others by majority rule
o Many non-UTC states have similar provisions to UTC
o Inter-trustee delegation authority varies:
• DE: ministerial powers only
• IL: all rights, powers, and duties
o Explicit duty to inform co-fiduciaries about trust administration and other material
information in NH
15
Co-trustees under statutory law (cont.)
Compensation and reimbursement
• UTC §708(a) provides for reasonable compensation
Liability
• UTC §703(c) provides a co-trustee is generally not liable for acts of another trustee
• Requirement to consult among all co-trustees before majority decision
• Some statutes make co-trustee liable for negligently permitting wrongful act
• Dissenting trustee protected under UTC and some non-UTC states if gives written notice to
co-trustees and not a “serious breach”
• Some non-UTC states like MI and NY relieve dissenting trustee of liability only with prompt
written dissent
Vacancies
• UTC §704(b) provides a vacancy need not be filled if at least one co-trustee remains in office
16
Directed trustees under common law
Role, responsibilities and decision-making
• Directed trustee has duty to follow directions of power holder
o Exceptions:
• Direction violates trust terms
• Trustee suspects violation of power holder’s fiduciary duty
o Little case law on directed trustee’s duty or authority to supervise actions of trust advisor
o Some authority that general fiduciary duties linger such as to keep informed, to
investigate, and to warn beneficiaries
• Rollins
• Duemler
• Enron
• Worldcom
Compensation
• Not addressed
Liability
• Generally liability is limited on directed action
o Exception: If directed trustee “has reason to suspect” violation of fiduciary duty
17
Directed trustees under statutory law
Role, responsibilities and decision-making
• UTC §808 states:
o Directed trustee’s residual oversight duty:
• Must act in accordance with third party’s discretion unless “manifestly contrary to
terms of the trust or the trustee knows the attempted exercise would constitute a
serious breach of fiduciary duty…”
o “Knows” includes a duty of inquiry
o Directed trustee retains “overall responsibility for seeing that the terms of the trust are
honored”
• Non-conforming UTC states:
o Five UTC states have varied from §808
o NH, AZ, TN, WY and FL explicitly eliminate the directed trustee’s duty to monitor, advise,
or consult with the advisor or communicate with or warn the beneficiaries of how the
trustee would have exercised discretion
• Non-UTC states:
o CO, DE, GA, ID, OH, OK, NV, and SD have statutes recognizing directed trustees and
limiting their responsibility
o DE’s provision served as the model for NH, AZ and TN laws
18
Directed trustees under statutory law (cont.)
Compensation and reimbursement
• UTC states:
o No specific provision for directed trustees but analysis should be similar to co-trustees
• Non-conforming UTC states:
o NH’s reasonable compensation statute applies to trustees, protectors, and advisors
Liability
• UTC states:
o Generally not liable for following direction of trust advisor or protector
o Potential liability follows to the extent of the directed trustee’s residual responsibility
o The duty of inquiry could leave trustees vulnerable
• Non-conforming UTC states and non-UTC states:
o DE, SD, perhaps others and non-conforming UTC states TN, NH and AZ place the
narrowest limits on directed trustee liability for following a direction
19
Investment advisors/investment committees under common law
Role, responsibilities and decision-making
• Role and responsibilities same as a full trustee with regard to investing and managing the
assets
• Standard of reasonable care, skill, and caution
• Duty to diversify unless trust provides otherwise
• Other fiduciary duties likely to apply (e.g., duty of loyalty)
Compensation and reimbursement
• Generally not addressed
Liability
• Subject to same liabilities as trustee with regard to investment function (e.g., open to claims
of mismanagement, failure to diversify)
• Liability for breach of general fiduciary duties (e.g., duty of care)
20
Investment advisors/investment committees under statutory law
Role, responsibilities and decision-making
• UTC states:
o Any person with a power to direct, other than a beneficiary, is a fiduciary and subject to fiduciary
duties
• Non-conforming UTC states and non-UTC states:
o A few states outline powers and duties that may be granted to a trust advisor
(e.g., SD, NH, NV, and WY)
• Compensation and reimbursement
o Not specifically addressed, except in NH (reasonable)
Liability
• UTC states:
o UTC §808(d) provides that a holder of a power to direct is liable for fiduciary breach
o Liability for breach of specific authority granted and breach of general fiduciary duties
• Non-conforming UTC states and non-UTC states:
o Some states provide default powers for “trust advisors” (WY) or “trust investment advisors”
(SD), others only illustrative powers (NH and ID)
o NH excludes liability for other participant’s decisions
Vacancies
• NH vests trustee with power to act on behalf of advisor until vacancy filled. Thirty day grace period
before liability. Trustee may petition court to fill vacancy
21
Discretionary distribution advisors/discretionary distribution
committees under common law
Role, responsibilities and decision-making
• Although there is little case law, the role and responsibilities probably the same as a full
trustee with regard to distribution decisions (e.g., duty of impartiality)
• Other general fiduciary duties likely to apply (e.g., duty of care)
Compensation and reimbursement
• Generally not addressed
Liability
• Subject to same liabilities as trustee with regard to discretionary decisions (e.g., open to
claims of improper distributions)
• Liability for breach of general fiduciary duties
22
Discretionary distribution advisors/discretionary distribution
committees under statutory law
• UTC and other states with trust advisor statutes do not distinguish discretionary distribution
advisors from other trust advisors, other than SD
• SD and NV have specific statutes outlining powers and discretions of a distribution trust
advisor
23
Trust protectors under common law
Role, responsibilities and decision-making
• Fiduciary role seems clear under case law but unique specific duties are assigned by almost
every trust instrument
• May have veto, consent, or oversight role
• May have to initiate certain actions or have other very limited role
• Unclear whether protector must monitor certain trustee actions
Compensation and reimbursement
• Not addressed
Liability
• Liability little addressed by case law other than McLean (2009 Missouri Appellate Court)
• Likely to be fiduciary under common law and therefore open to claims for breach of general
fiduciary duties
24
Trust protectors under statutory law
• Four statutory approaches to trust protectors:
o Deem them adequately addressed within broader class of trust advisors and/or power
holders (e.g., UTC, DE)
o Cloning the trust advisor/power holder provisions for trust protectors
(e.g., UTC – in part, AK, ID)
o Adopting provisions that distinguish trust protectors. Some states list slightly different
powers from those of trust advisors (e.g., WY, SD, NH)
o Combining all participants with authority to direct a trustee under the title “trust protector.”
Trust protectors are deemed fiduciaries and must act in good faith in accordance with the
terms and purposes of the trust and the interests of the beneficiaries (e.g. MI)
• Even when separate statute for trust protectors, the treatment is the same as or similar to
trust advisors
25
Where the law is today—conclusions
• Common Law:
o Law on co-trustees is well-developed
o Common law has only recently begun to address directed trustees and thus far without
providing much comfort to them
o Almost no common law on other trust participants (other than McLean case and
Restatements), but their status as fiduciaries except as modified by statute or trust
instrument seems clear
• The UTC and specialized state statutes address many issues, including:
o Fairly extensive co-trustee provisions
o Explicitly permitting directed trusts
o Permitting power holders (e.g., trust advisors; protectors)
o Identification of power holders as fiduciaries
o Clarifying that a trustee must respect direction
o Limiting the directed trustee’s liability
o Some specific statutes delineate fiduciary role and possible powers of trust advisors and
protectors
26
Where the law is today—conclusions (cont.)
• The holes—what even the best state statutes do not cover at all, or at a sufficient level to
provide certainty (though NH, AZ, TN and DE come closest):
o Residual fiduciary duties of directed trustees with respect to power holders
o Explicit provisions addressing the duties of power holders
o No explicit duty on trust participants to co-operate
o No explicit duty on trust participants to even communicate (other than NH; DE has duty
but only upon request of trust participants)
o Mechanism for filling vacancies in the office of non-trustee participants (other than NH)
o Compensation and reimbursement of expenses for non-trustee participants (other than
NH)
o Determination of incapacity of non-trustee participants
o Treatment of dissenting participant
o Mechanism for dealing with disagreements between trust participants
27
Supplying the elements of a well-functioning, multi-participant trust
when the law is inadequate
• Not enough to assign an array of roles to trust participants and then merely say:
“Now go forth and do good.”
• Many issues have been addressed by state law but no state has addressed them all
• Even where addressed, most settlors will not approve of all of the law’s solutions
• Only the draftsperson can supply the missing elements or reverse unsatisfactory state rules
• First job of the draftsperson must be to select a state whose law meets 3 criteria
o She can be confident that elements missing from state law or preferred by the
settlor can be supplied by the trust instrument
o A strong directed trustee statute provides the underpinning necessary for the
whole concept of a multi-participant trust
o Other state law features exist that may be deemed important to the purposes of the
trust or to reinforce the draftsman’s allocations of duties and liabilities
• Second job of the draftsperson must be to supply every element that she determines is
required for a well-functioning, multi-participant trust, including, again
o Elements necessary to enable each participant to know and do her job
o Elements necessary to induce the participants to accept their appointments
o Perhaps create and assign the job of trust coordinator
28
Reviewing the characteristics of a manageable multi-participant trust
• Clear and manageable legal and risk parameters, taking into account applicable governing
and administrative law, through provisions setting forth the
o Fiduciary status, standards, and duties of each participant
o Liability, if any, for acts or omissions of another participant
o Responsibility of directed trustee for functions of other trust participants
• Effective trust management structure
o Communication
o Coordination
o Filling vacancies
o Time limits for approving and vetoing actions
o Clarity regarding decision-making of multiple trust participants and requirements for a
dissenting participant
o Compensation and reimbursement clarity
o Expeditious, out-of-court resolution of major and minor participant disputes
29
Coordination generally requires a coordinator
•
Consider creating a “managing directed trustee” (“MDT”) to forge a team out multiple trust participants
•
Family office (“FO”)/Private Trust Company (“PTC”) management of multiple participants provide templates
for the MDT
o FOs can create formal, fiduciary support (agency) agreements for the participants (the model)
o All responsibilities other than discretionary decisions assigned in the trust delegated to FO
o FO “tees up” those decisions, records them, implements them
o PTC performs same functions—by bringing the participants under its corporate umbrella and
hierarchical management structure—with maximum coordination of all participants (the ideal)
o Key for both FO model and PTC ideal: actual ability to coordinate trust participants’ actions
•
An MDT if similarly given the authority to coordinate the activities of all participants, can set and advance
the agenda for a multi-participant trusts by using that authority to:
o Provide each participant material information about the trust’s assets, distributions, expenses and
beneficiaries
o Set guidelines for timely decision-making by participants with critical trust powers
o Notify each participant when he has a decision to make; inquire whether he has made it and record the
decision
o Identify who must implement each participant decision
o Assure that persons responsible for implementing a decision are aware it was made and what it was
o Assure and coordinate regular communication with the beneficiaries and settlor
o Temporarily perform vacant participant roles and taking steps to see vacancy filled
30
Coordinator’s responsibility must be for process, not results
• The MDT’s liability must, by state law or trust instrument,
o Be limited to the administrative processes it actually undertakes
o Exclude responsibility for whether another participant actually makes a decision, the
quality of that decision or even acts or responds when requested to do so by the MDT
• Progressive state laws can protect the MDT from liability for the actions of other participants
to a certain extent, but the draftsperson must
o Build on the state directed trust laws, especially those that authorize the directed trustee
to confirm, record and report actions without assuming responsibility for trust outcomes
o Limit the MDT’s role to administrative actions that are within its authority and capability
o Ensure that the directed trustee has the authority to meet its process responsibilities
o Assure that the directed trustee/MDT has no liability for results dependent on the actions
of others
• The MDT is likely to be a corporate trustee or a PTC but it can also be a professional advisor,
family office (as “managing advisor” but not trustee) or an individual with the requisite skills
31
Other drafting points for creating a manageable multi-participant trust
• Defining who is and who is not a fiduciary
o Current law considers various trust participants to be fiduciaries
o Specific waiver of the status as a fiduciary is needed to avoid the presumption
o In some state’s, a court’s interpretation of a waiver still uncertain, others prohibit it in part
(e.g., Michigan)
• Information sharing
o Other than NH and a limited implementation by DE, no statutes or case law address
necessity for information-sharing among participants
o Draftsperson may want to establish guidelines requiring necessary information to be
supplied
o Consider
• Type of information
• Timing of information-sharing
o Some information-sharing may have limits, e.g., deliberations regarding discretionary
decision-making
32
Further limiting liability of trust participants?
Exculpation, indemnification, or neither?
• Directed trustee liability for following a direction is limited under many state statutes absent a
finding that attempted exercise is:
o Manifestly contrary to the terms of the trust or
o Would constitute a serious breach (UTC Standard)
o Or willful misconduct (DE) (willful misconduct defined in 2010 to mean intentional
wrongdoing not mere negligence, gross negligence or recklessness)
• Power-holder’s liability is generally not addressed. Draftsperson and settlor need to consider
drafting limits if desired
• Consider use of an entity (such as an LLC) for a trust participant to act if liability exposure
needs to be limited
• Consider errors and omissions insurance policy purchases by the trust
• Do consider the need to balance protection of participants with competent performance of
trust functions when considering exculpation/exoneration/indemnification
o Exculpation clauses should be drafted in as appropriate
• Some common and statutory law limits usefulness
• Will not protect against bad faith, reckless indifference to interests of beneficiaries,
liability for a trustee’s profit from a breach or abuse of a fiduciary or confidential
relationship
• Some cases completely reject as “contrary to public policy”
o Indemnification can also be a remedy
33
Vacancies, succession, incapacity
• Goal is to avoid a hiatus in an area of trust decision-making if a participant resigns, dies, is
incapacitated or is removed
• Problem of vacancies not generally addressed in the law (other than NH). Must solve with
good drafting.
• Issues that should be covered:
o Succession of multiple trust participants
o If vacancy not filled, give trustee or other trust participant power to appoint a successor or
direct they petition a court to fill vacancy
o Consider vesting the trustee or another participant with the powers held by the former
trust participant until a new participant is appointed
o Suspend liability for a period of time is role is being temporarily filled by trustee or
another trust participant
o Require notice to all participants of resignation
o Provide when vacancies need not be filled
o Vest successors with all necessary powers
o Consider waiving liability for acts and omissions of predecessor
o Consider tax sensitive powers and possible prohibitions on who can act
• Incapacity
o Identify how incapacity will be determined and what the consequences are
34
Where do we go from here?
• Trend toward multi-participant trusts is likely to continue
• Watch for more developments on the legislative front because this is a rapidly evolving area
of trust law
• Practitioners and advisors need to have a broad understanding of many issues involving
multiple trust participants to draft their ways over, under, around and through them
• Careful drafting must fill in where even the best statutes are silent, or ambiguous, or where
the settlor wants different terms
• Think of the trust participants as part of an organization when drafting coordination and
communication clauses
o Consider whether you can rely on participants to “go forth and do good.”
35
Stephen E. Parker, Wealth Advisor
J.P.Morgan Private Bank
Stephen E. Parker is a member of J.P. Morgan’s national Wealth Advisory Group and is responsible for
tax and estate planning strategy for the firm’s Private Banking clients in the Southeast region.
Prior to joining J.P. Morgan Private Bank, Steve spent 13 years in the private practice of law and was
most recently a partner in the Family Wealth Planning Department of Cohen, Pollock, Merlin and Small.
Steve is an attorney, admitted to practice in Georgia, and is a member of the American and Georgia Bar
Associations. He is also a member of the Georgia Fiduciary Law Section Legislation Committee, a
member of the Planned Giving Advisory Board for both Emory University and the Community
Foundation for Greater Atlanta, and a Board member of the Georgia Planned Giving Council. His
specific areas of expertise include wealth transfer, closely held business and international tax planning.
He is a frequent lecturer on estate planning and tax topics.
Mr. Parker received a BSBA, magna cum laude, from Washington University in St. Louis (1989), and a
J.D., with distinction, from Emory University School of Law (1992).
36
Anita Sarafa, Wealth Advisor
J.P.Morgan Private Bank
Anita Sarafa joined JPMorgan Private Bank in 2000, where she is a Managing Director in the Wealth
Advisory Group. She provides high-net-worth individuals and families throughout the Midwest with
integrated wealth management advice on how to tax-efficiently hold, manage and transfer their wealth.
In addition to serving as a Wealth Advisor, Anita acted as the Fiduciary Manager for the Midwest
region, overseeing trust and estate administration from 2000 to 2002. Prior to joining JPMorgan Private
Bank, Anita was with the Chicago-based law firm of Winston & Strawn for 11 years, practicing in the
Trust & Estates Group. She was admitted into the partnership in 1998. Anita is the current Vice
President of the Chicago Estate Planning Council and a member of the Ravinia Festival Planned Giving
Advisory Committee, American Bar Association, and Chicago Bar Association. She speaks frequently
on topics related to tax planning, charitable giving and estate planning. Anita has also been featured in
Business Week, the Wall Street Journal, Dow Jones, the Chicago Tribune, CLTV and other local and
national media.
Anita graduated from the University of Michigan with a B.A. in Political Science. She received her Juris
Doctor from Boston University School of Law in 1989. While at Boston University, Anita was an editor
of the Probate Law Journal for the National College of Probate Judges.
37
John P.C. Duncan, Founder
Duncan Associates Attorneys & Counselors, P.C.
John Duncan founded the Chicago law firm Duncan Associates Attorneys and Counselors, P.C. in 2000
to concentrate on the representation of private, boutique, and traditional trust companies, family offices,
and other wealth management organizations. His expertise includes the drafting of state trust company
and trust laws, designing and implementing trans-generational governance and succession structures
and family office risk-management programs. Over the past 20 years, he has advised more than 130
ultra-wealthy families, including forming more than half of the regulated Private Trust Companies
chartered in the United States during that period, generally in collaboration with the clients’ tax and trust
counsel. In 2009, he founded the PTC Association, LLC, an association of private trust companies.
John drafted a model trust company act that has been adopted in nearly half of the states. The firm
served as principal counsel for the drafting of New Hampshire’s new trust and trust company statutes in
2007 and 2008, establishing it as a very attractive state for trusts and private trust companies. The
amendments included the most detailed provisions in the nation addressing the relationships among
trustees and other trust participants, such as co-trustees, trust advisors and trust protectors, which
provisions have since been emulated by other states, including Michigan, Tennessee and Nevada.
Most recently, the firm has been principal draftsmen of similar trust company legislation enacted in
Nevada that became effective October 1, 2009.
John is a graduate of Yale University (B.A. cum laude 1971) and The University of Chicago Law School
(J.D. 1974). Prior to forming Duncan Associates, John headed the banking and investment practice of
the international law firm Jones Day.
He is a regular contributor to professional publications, including Trusts and Estates, a frequent speaker
at legal and wealth management conferences, and an oft-quoted resource for articles in the Wall Street
Journal, Family Wealth Report, Registered Rep and other national and local media.
38
Disclaimers
Duncan Associates
Attorneys and Counselors, P.C.
Any discussion of U.S. tax matters contained herein, including attachments, is not intended or written to
be used, and cannot be used, in connection with the promotion, marketing or recommendation by
anyone unaffiliated with Duncan Associates Attorneys and Counselors, P.C. of any of the matters
addressed herein or for the purpose of avoiding U.S. tax-related penalties.
JPMorgan Chase & Co.
JPMorgan Chase & Co. and its affiliates do not provide tax advice. Accordingly, any discussion of U.S.
tax matters contained herein is not intended or written to be used, and cannot be used in connection
with the promotion, marketing or recommendation by anyone unaffiliated with JPMorgan Chase & Co.
of any of the matters addressed herein or for the purpose of avoiding U.S. tax-related penalties.
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