What is a Fiduciary Relationship in England and Wales?

As a business owner in England and Wales, you may come across fiduciary relationships. A fiduciary relationship requires a fiduciary to act in another person’s best interest. This is especially relevant if you are:  

• thinking of creating a trust;
• considering your board members’ responsibilities; or 
• receiving investment advice from certain people. 

This article will explain:

• what a fiduciary relationship is;
• when one is created; and
• some of the responsibilities that fiduciaries have in certain contexts. 

What is a Fiduciary?

A fiduciary is a person who will act on behalf of another person, called the beneficiary. Fiduciaries must put their beneficiary’s interest above their own. The fiduciary obligation will also require the fiduciary to act in good faith and with trust. In other words, law and ethics require a fiduciary to act to the highest standard in someone else’s interest. 

Typically, a fiduciary duty will be imposed on someone working within their professional position. Although fiduciary duties can exist between, for example, a child and a legal guardian, it is more often used in a business context. Some classic examples of business relationships which involve fiduciary obligations include:

• trustees;
• people managing assets;
• corporate directors;
• board members;
• bankers;
• solicitors; and
• individuals offering investment advice;

What is a Fiduciary Duty?

Fiduciary responsibilities will depend on the exact relationship at hand. For example, the precise duties of a trustee will be slightly different to that of a fund manager. There is a wide range of specific responsibilities depending on the fiduciary capacity in question, as discussed below. 

However, there are four key responsibilities that apply when the fiduciary is an advisor who is acting on behalf of a client. This includes:

• no conflict;
• no profit;
• undivided loyalty; and
• confidentiality.

Duty of No Conflict

The duty of no conflict means that the fiduciary must not put themselves in a position where there is a conflict between their own interests and the interests of the beneficiary (i.e. the client). Such conflicts of interest or conflicts of duty can, in some instances, give rise to a duty of care.

The fiduciary is also unable to put themselves in a position when there is a real chance that their own interest will clash with the interest of the beneficiary. 

Duty of No Profit

This duty means that the fiduciary is not allowed to profit from a situation at the beneficiary’s expense. For example, a board member who is acting in a fiduciary capacity will not be able to use their contacts from their position to set up a competing business, with the hope of making a profit for themselves. 

The scope of this duty will vary depending on the current relationship between the fiduciary and the beneficiaries, so it is often a good idea to seek professional legal advice if you are dealing with a fiduciary who may have breached their duty of no profit. 

Undivided Loyalty

This duty is similar to the duty of no conflict but is about conflict with other people’s interests rather than the fiduciary’s. Further, this means that the fiduciary is not allowed to put themselves in a position where they have to choose between the duty owed to the beneficiary and the duty owed to someone else. 

Confidentiality

This duty means that if the fiduciary receives confidential information from the beneficiary, then they are only able to use that information for the benefit of the beneficiary. They may not use this confidential information for some other purpose.

Importantly, if you have a fiduciary relationship between an advisor and a client, then the advisors’ fiduciary obligations will end when the business relationship also comes to an end. This means that the fiduciary will not have a responsibility to act in the best interest of the client. However, they will still have an obligation to preserve confidential information. As a result, this duty will continue even after the business relationship comes to an end.

Specific Duties for Specific Relationships

On top of these general fiduciary duties, certain fiduciaries will have further obligations depending on their role. 

A board member, for example, will have a fiduciary relationship with shareholders. Among other things, this means that if the board is making a decision, they will be required to investigate all potential decisions and how they may affect the business. It must then make the decision that it believes will be in the best interest of the company and its shareholders, which can also include the company’s investment practice, including investment decisions.

A trustee of a property, on the other hand, should keep their property in good repair. A trustee is someone who holds assets in trust for the benefit of someone else. This is often money, but can also include physical properties such as land. 

Key Takeaways

On the whole, fiduciaries must adhere to a higher level of responsibility based on their relationship with their beneficiary. This comes with typical duties, such as the duty to avoid a conflict of interest, to keep the information confidential, to not profit from the relationship, and to have loyalty to their beneficiary. Certain specific fiduciary positions will come with additional duties.

If you need to discern the exact scope of fiduciary responsibility, our experienced corporate lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today at 0808 196 8584 or visit our membership page..

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