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Richard, Attorney
Category: Legal
Satisfied Customers: 55459
Experience:  Attorney with 29 years of experience.
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A professional trustee, ( Massachusetts, Family Real Estate

Customer Question

A professional trustee, ( Massachusetts, Family Real Estate Trust) two months after being named by the beneficiaries to replace our father who is now incapacitated is seeking to limit her personal liability for any actions taken, suggested or omitted in good faith.
1. Can she do this and if so what should be the proper contract language?
2. Is it retroactive or from the date signed forward?
Other considerations?
Submitted: 1 year ago.
Category: Legal
Expert:  Richard replied 1 year ago.

Good morning. My name is ***** ***** I look forward to helping you.

This is not an unreasonable request by a professional trustee and even if she didn't get this in her agreement, it's not likely she would be held liable for actions taken, suggested or omitted in good faith. What would create problems for her would be actions relating to negligence, gross negligence, and/or willful misconduct. As long as the contract language excludes limiting her liability where negligence, gross negligence and/or willful misconduct is involved, you really won't have any problem agreeing to this because it's not likely she would be liable anyway. Accordingly, although you can insist that it not be retroactive but only going forward, as long as you get the foregoing exclusions, it really won't make much difference. Any professional trustee is going to want similar protection.

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Customer: replied 1 year ago.

What is the difference between negligence and gross negligence?

Expert:  Richard replied 1 year ago.

Thanks for following up. Negligence is simply a careless mistake. Gross negligence is more of a "conscious and voluntary disregard of the need to use reasonable care." It involves actions that are wilfull, wanton and reckless.