Colorado § 15-10-504 - Surcharge - contempt - sanctions against fiduciaries.

§ 15-10-504. Surcharge - contempt - sanctions against fiduciaries.

(1) Notice. Except as provided in subsection (3) of this section, notice to a fiduciary concerning any matters governed by the provisions of this section shall be provided pursuant to section 15-10-505.

(2) Surcharge.

(a) If a court, after a hearing, determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, after applying the standards of care applicable to each fiduciary in a proceeding, the court may surcharge the fiduciary for any damage or loss to the estate, beneficiaries, or interested persons. Such damages may include compensatory damages, interest, and attorney fees and costs. When allocating any such damages among fiduciaries, the court shall consider the standards of care applicable to the fiduciaries in the proceeding.

(b) In awarding attorney fees and costs pursuant to this section, a court may consider the provisions of part 6 of this article 10 and shall consider the standards of care applicable to the fiduciaries in the proceeding.

(3) Contempt proceedings against fiduciary. Nothing in this part 5 shall be interpreted to limit or restrict a court's authority to proceed against a fiduciary for direct contempt as provided in rule 107 of the Colorado rules of civil procedure. In addition, if a fiduciary fails to comply with an order of a court issued pursuant to this part 5, the court may proceed against the fiduciary for indirect contempt as provided in rule 107 of the Colorado rules of civil procedure. A court may initiate indirect contempt proceedings on its own motion or upon the filing of a motion supported by affidavit as described in rule 107 of the Colorado rules of civil procedure.

(4) Sanctions. If a court determines that a breach of fiduciary duty has occurred or an exercise of power by a fiduciary has been improper, the court, after a hearing, may order such other sanctions as the court deems appropriate, but the court shall take into account the standards of care applicable to each fiduciary in the proceeding.

(5) Remedies. If remedies are sought against a directed trustee for complying with the direction of a trust director under the "Colorado Uniform Directed Trust Act", part 8 of article 16 of this title 15, or comparable arrangement created under the terms of a trust, the court shall take into account the standards of care applicable to each fiduciary in the proceeding when apportioning damages, fees, costs, or fault among the fiduciaries.

Source: L. 2008: Entire part added, p. 480, § 1, effective July 1. L. 2011: (2)(b) amended, (SB 11-083), ch. 101, p. 302, § 2, effective August 10. L. 2019: (2) and (4) amended and (5) added, (SB 19-105), ch. 51, p. 175, § 11, effective August 2.

ANNOTATION

Subsection (2)(a) endorses the view that compensatory damages ought to be recoverable by third parties harmed by breaches of fiduciary duties owed to others. In Matter of Taylor Trust, 2016 COA 100, 381 P.3d 428.

The surcharge proceeding created from the plain language of subsection (2)(a) is distinct from a tort proceeding. In Interest of Becker, 2017 COA 114, 405 P.3d 499.

Applied in Sandstead-Corona v. Sandstead, 2018 CO 26, 415 P.3d 310.