The Lawful Government and the Constitution Do Not Exist
In 1787 the people of the states were concerned that if they did not make significant changes in the Articles of Confederation, the government would collapse. They took it upon themselves to call for a Convention to amend the Articles of Confederation. After the people called for the convention, Congress jumped on the bandwagon and supported the plan.
Once again our government has become dysfunctional and is abusing the rights of the people it was created to protect The People are the ultimate source of the government's authority and it is up to us to hold our government accountable.
Our elected officials must obey the rules as specified in the Constitution or must face criminal prosecution if they refuse honor their oath.
The Union State's Assembly believes that Constitution and the lawful government of the United States no longer exist. When the elected officials abandoned the Constitution with the passage of unconstitutional legislation, the government lost its lawful authority to act in behalf of the people.
Congress is currently nothing more than a collection of lawyers, bankers and thieves that masquerade as public servants. They have no more authority than govern than any other crime syndicate.
We need to arrest all of the impostors who are pretending to represent us and prosecute them for their crimes.
Replies to This Discussion
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Permalink Reply by Morton Thomson Jr. on
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Good observation James,
But Hamilton is still being true to his big government nature in that quote from No. 85 he was simply trying to quiet the opposition so to speak, to keep them from erecting too many protections. Protections that would hinder his ability to erect those big banks, in those big cities, with their big roads leading to their big buildings and their big government jobs. He was a dreamer, eh? He had vision, that guy. Its a good thing there was a T.J. to argue against these ideas. Hamilton thought the Bill of Rights unnecessary. That should tell you all you need to know about him.
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Permalink Reply by Christopher A. Brown on
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Steve, have you ever tried to share information with Americans that would save lives? Lots of lives, then found you could not share the information effectively and thousands died?
I have, and could not effectively share what was needed to be shared and understood, and they died. They are still dying, and the information STILL has not been shared. Millions may die now for precisely the same reason. In fact, considering the scope of the problem now, it is possible because of this deficiency that our species will become extinct.
There was intense competition for inclusion of concept in the DOI, then the constitution and amendments to follow. Critical natural law concepts were excluded, one of them was the PURPOSE of free speech. It was stated differently then than I will state here. Here I state something more appropriate for our social structure than what was excluded then.
The purpose of free speech is to assure information vital to survival is shared and understood.
What we have called "free speech" does NOT serve that purpose and millions of Americans will die because of that fact.
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Chris, we must always be vigilant about protecting 1st Amendment Freedom of Speech. Think about when the internet first came out, the Post Office wanted to charge people for emails-and they were serious! We have come a long way since the Alien and Sedition Acts, and slave owners not allowing slaves to read. As far as your question about sharing information with someone that could save their life, as a Christian I have a responsibility to preach the Word in season and out of season. The Lord has not put me into the ministry yet, so it is out of season for me and I am careful about "not casting my pearl before swine' as I wait for opportunities to share the Good News. To make a long story short, a couple of years ago there was a 17 year old high school girl who worked as a cashier at a fast food restaurant that I go to. Brittney was an atheist and a lesbian, but was genuinely interested in what I had to say. So I would go and talk to her during her lunch break, always in the dining room where she worked and never leaving the premises. People still seemed to have a problem with this, but why should they. She has middle aged men as supervisors and school teachers. So I'm not supposed to talk to her about God, but that is not all that we talked about-I was just befriending her. The day before she was to move back to Florida with her mom, I was going to ask her if she wanted to pray a sinners prayer with me and there was some serious spiritual warfare going on, the Devil got into her supervisors and they would not let her go on a lunch break. I sowed a seed with Brittney and I am confident that she came to a saving knowledge of Jesus Christ.
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Good position Jesse,
Something tells me that the most effective control will be on a state level, IF Americans can grasp constitutional intent. So far I've not seen they can even discuss it. If they cannot, then counties might be the best.
However, if they can, the states legislatures can be controlled, which will control an Article V AND the counties.
Jesse wrote:
--" In fact, it is my sense that until we find ways to empower and inform the electorate and their families to take charge of their own communities (local control to push back on nationalistic policies) all such 'fix Washington' efforts will disappoint. "--
American politics have been put into a box controlled by partisanship. Neither party is functional of the 2 biggies, and the others are no better.
Accordingly I came up with a concept that gets rid of parties and wholly embraces the prime principals of the constitution.
http://patriotaction.net/forum/topics/the-party-that-ended-all-part...
There are only 2 real obstacles to this concept. One is gaining access to incumbents to test them, the second is publicity of the test results and for new candidates who wholly embrace the principles.
This is where we see how far free speech is abridged.
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Not a dumb question at all Rosanna.
--"If the Constitution is dead why would anybody want to study it?"--
A very simple reason is that most sincere Americans wonder why so many of our soldiers have sacrificed their lives defending it. I would say that despite the fact that almost no writing is done upon constitutional intent, Americans know that intent in their hearts.
The infiltrators saw to it that generations were deprived of the social knowledge defining such intent consciously. Because that conscious awareness is also unity which can defeat the infiltration.
However each soldier and many, many others have a huge appreciation for it unconsciously. The study is directed at somehow finding conscious definition of constitutional intent that can be shared to protect those they love.
Every time you encounter law enforcement that meticulously observes your civil rights, be it a cop or a judge, you are looking at the constitution alive and well in their hearts.
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Permalink Reply by Keith Broaders on
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There are those that have promoted the myth that Congress ceased to have a quorum in 1861 when senators and representatives of the southern states resgined and walked out. The fact is that a quorum consists of a simple majority and when 14 out of 68 senators withdrew and 28 representatives out of 211 resigned there was still 79% of the Senators available and 86% of the members of the House of Representatives. While it is true, Congress no longer has the lawful authority to represent the people.
When Congress abandoned the Constitution, they voided the agreement between the states and the government of the United States. Since the Constitution is no longer being observed and enforced, Congress no longer has any lawful authority.
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Why not just do as the founder instructed?
Let us take away all the money and power in Washington; they use both to usurp States rights and powers. The Founders gave us the method to correct DC.
In James Madison's Federalist No. 43 he writes "It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other":
Federalist No. 43
In Federalist No. 85, Alexander Hamilton writes "We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority":
Federalist No. 85
http://articlevprojecttorestoreliberty.com/article-v-library.html
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If only we could
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May I Address You, Fellow Citizens
America is in serious jeopardy of becoming a Pure Democracy without the protection of a Constitution.
The 235 year old Constitution is being attacked from all sides - the Extreme left calls it a 'Living document', a Document of legal structure and not law, a outline to be filled in by Congress and statute laws; as time and the political fortunes and popular winds might blow it. How has that thought system been working for the people, I ask?
Are we not seeing our rights and liberties being reduced each and every year, as the three [federal] branches just basically ignore any limits stated in the original Constitution. The Congress says it can pretty much do as it pleases,... if it can pass the law.
The Executive now says he will do as he pleases as he has a phone and pen to sign Executive orders. The Courts have such narrow limits, concerning who and when, We The People or our representatives can not bring suit against the other branches of government. 'Standing' is a court invention and Judges can find it open to interpretation, especially if, the applicant is of liberal philosophy. A perfect example is an environmentalist group vs. an Industry or group of businesses. The Courts favor championing these cases and casting opinions in favor of this popular 'progressive' agenda. Then as the political landscape changes, perhaps the Next Judge or Court could be more conservative and say 'no' to the Environmental group, and say 'yes' to the Industry and businesses. The laws being made by current politics and changing standards, instead of true, fair, unprejudiced, and permanent Constitutional standard.
Clearly the government is out of control, and has changed to no longer respect The People's right to property - THEY take our property, while violating the "TAKING" clause of the fifth amendment, themselves. The THIEF is the Master, no longer a subject of the laws, but the 'violator' above them. Farmers can no longer farm their land, or sportsmen access public and federal lands, if an endangered species [weed, insect, lizard or even a non-native fly] is said to have been seen on the land.
Environmentalists found some small fish, and sued to cause the shutdown of irrigation in the California central valley - the government had contracted with the farmers to provide the irrigation water, and now using environmental activism and a fish, they break the contract. Many farmers lost their farms and were forced into bankruptcy - their legal rights were violated without just compensation. We The People were usurped by a fish.
Children in large city, the ghettos have had Government take away the vouchers that permitted their children to escape a collapsed and failed central city school system. The Federal government sued to stop Louisiana from issuing vouchers, to mostly black students ironically, many of the most impoverished, vouchers that would have allowed that they could go to better schools. How much sense does it make to force children to attend schools that can not educate them or provide them with skill sets that would allow them a opportunity to find gainful employment.
Job skills are not taught in most schools any more. Increasingly, we can see that the young can not find employment, either in jobs that require education skills, but also, as they have no trade or specific training to qualify them. Yet the federal government continues to demand more tax dollars to throw after the failing public school systems they have been socially engineering for decades.
Our failing social 'net' programs have failed us too, and have created a sad paradigm, young women choose to have babies out of wedlock so they can qualify for all the welfare monies available, like Food Stamps, housing allowance, Medicaid, school meals [3 per day] and afterschool free child care at schools.
"The steady expansion of welfare programs can be taken as a measure of the steady disintegration of the Negro family structure over the past generation in the United States." Daniel Patrick Moynihan. He was correct, the rules stated to qualify for help, the husband or man could not live with the family. How stupid was that in retrospect? We do not address education or training programs that target and specifically aid these mothers in a trade that can help her support her family; help her to leave the condition of reliance and break the cycle of poverty - proven through generations to perpetuate itself.
A further failure of the many public welfare programs for the unemployed person, if they do any work outside of their 'assistance' they could lose their welfare benefits that exceed the small earnings allowed. I have a common sense suggestion, how about if we encouraged them to work and let them reduce the amount of welfare money they can collect by 25% of the earned amount? Yes - reward them for work! Help them move up the economic ladder, build a skill set and self esteem and establish the concept of self-reliance and independence.
Consider the possibility, Could it be that the big city politicians want to keep control over the people and use them as voter farms? Yes, it is possible that people are being used, through encouraged dependency and perpetuating poverty and 'needy populations' for others to get and keep POWER OVER them. Doing so, by never really correcting the problems, just paying lip service to them, blaming the other political party for the conditions they in a turn, insure through pretended action and empathy.
Our Representative Democracy, correctly the 'Republic' upon which we were founded, is gone. Representative government today is just not working any longer to Protect We the People from Oppression and Tyranny . . the Federal government has continued to raise taxes, fees, permits, fines and other money collection methods to collect so much money. Money, they in turn, use to bribe voter blocks, or hold hostage our city, State and local governments, so they must do the bidding of 535 elected officials in Washington, DC.
We see the foolish results of all these statutes, like 2400 pages of the ACA, 1500 page budget bills, no one reads these and they still pass them into laws which just do not work to benefit the citizens. [Inside of these massive bills they hide and attach many 'perks' for the special interests and/or added layers of more laws and regulation.
These mega laws benefit the Government, the layers and additions grow government agencies. The IRS, NSA, DOE, DOD, EPA and many other agencies have now proven that Congress can not even provide oversight. The agencies go rouge, their administrations conduct business without Congressional oversight, we have created a leviathan bureaucracy that cannot, and is not managed. Now we have an executive that says he only needs a pen and a phone to get past Congress to do as he wishes, executive orders are issued and used to punish industries and segments of our industrial base, they are used to promote and implement an agenda that cannot pass through the legislative process.
Americans seem to be numb to all the abuse. The 24/7 news cycle drones every usurpation to mediocrity, we are no longer capable of being shocked. Disillusionment is the state where we just say - "well I tried, but electing new people does not change a thing, they are all the same?"
In an attempt, by many Patriots, the ARTICLE V STATE AMENDMENT movement was born about ten years ago. Many have fought hard to educate the public that WE THE PEOPLE have the power to shut them down - we can end the Oppression and Tyranny from Washington. We are the People living in the States are the last line of defense, the wall, the brake applied to this over-reaching, out-of-control, usurping federal government.
We can take back the majority of the money, stop the borrowing of our great grandchildren's money and freedoms. We can, by acting through our State Legislatures, regain our rights and freedoms using Article V to repeal the 14th, 16th, and 17th amendments, which will restore States rights and power. It will make the Senators report to our State Legislatures, it will make the courts withdraw usurped powers and start to respect the Limits of Article III of the Constitution of the United States again.
Yes, fellow citizens we the people have the power to make government smaller, weaker and limited. The government that governs best is the one closest to the people. Local and State. Now the important questions come- "Are you mad enough to take action? Will you present ideas to your State legislators [all of them], and will you ask them to take Article V action to their legislative floor, and propose the Repeal Amendment found in the Article V Project to Restore Liberty Library?
Each citizen has a responsibility to help govern our States and Nation. Voting is a right. With our votes we choose the people we trust to represent us and be our voice. Raising that voice in defense of restoring our Founding Document and demanding action that will stop the federal branches from usurping and ignoring the Constitution, is a responsibility. Ours, We The People.
Thank you for reading.
Your Friend in Liberty
Mangus Colorado
http://articlevprojecttorestoreliberty.com
http://articlevprojecttorestoreliberty.com/article-v.html
http://articlevprojecttorestoreliberty.com/understanding-article-v....
http://articlevprojecttorestoreliberty.com/article-v---group-overvi...
http://articlevprojecttorestoreliberty.com/not-a-constitutional-con...
http://articlevprojecttorestoreliberty.com/the-28th-amendment.html
http://articlevprojecttorestoreliberty.com/take-action.html
http://articlevprojecttorestoreliberty.com/color-brochurearticle-v....
http://articlevprojecttorestoreliberty.com/blk--white-trifold-broch...
http://articlevprojecttorestoreliberty.com/article-v-library.html
http://articlevprojecttorestoreliberty.com/advocacy---article-v.html
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There is a tide in the affairs of men, Which taken at the flood, leads on to fortune. Omitted, all the voyage of their life is bound in shallows and in miseries. On such a full sea are we now afloat. And we must take the current when it serves, or lose our ventures.
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Permalink Reply by Harold B Hayden on
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Subject: Re: Fw: Fiduciary Duty: What is it and what does it impose on you5 CFR § 2635.101 Basic obligation of public service
[http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&a...][Red emphasis added and a comment !]
Authority: 5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 57 FR 35042, Aug. 7, 1992, unless otherwise noted.
Sub part A—General Provisions
§ 2635.101 Basic obligation of public service.
(a) Public service is a public trust. Each employee has a responsibility to the United States Government and its citizens to place loyalty to the Constitution, laws and ethical principles above private gain. To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section, as well as the implementing standards contained in this part and in supplemental agency regulations.
(b) General principles. The following general principles apply to every employee and may form the basis for the standards contained in this part. Where a situation is not covered by the standards set forth in this part, employees shall apply the principles set forth in this section in determining whether their conduct is proper.
(1) Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the conscientious performance of duty. [Think Judges and their bank-held pension plans, hearing foreclosure cases.]
(3) Employees shall not engage in financial transactions using nonpublic Government information or allow the improper use of to further any private interest.
(4) An employee shall not, except as permitted by subpart B of this part, solicit or accept any gift or other item of monetary value from any person or entity seeking official action from, doing business with, or conducting activities regulated by the employee's agency, or whose interests may be substantially affected by the performance or nonperformance of the employee's duties.
(5) Employees shall put forth honest effort in the performance of their duties.
(6) Employees shall not knowingly make unauthorized commitments or promises of any kind purporting to bind the Government.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment to any private organization or individual.
(9) Employees shall protect and conserve Federal property and shall not use it for other than authorized activities.
(10) Employees shall not engage in outside employment or activities, including seeking or negotiating for employment, that conflict with official Government duties and responsibilities.
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.(12) Employees shall satisfy in good faith their obligations as citizens, including all just financial obligations, especially those—such as Federal, State, or local taxes—that are imposed by law.
(13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
(14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
(c) Related statutes. In addition to the standards of ethical conduct set forth in this part, there are conflict of interest statutes that prohibit certain conduct. Criminal conflict of interest statutes of general applicability to all employees, 18 U.S.C. 201, 203, 205, 208, and 209,are summarized in the appropriate subparts of this part and must be taken into consideration in determining whether conduct is proper. Citations to other generally applicable statutes relating to employee conduct are set forth in subpart I and employees are further cautioned that there may be additional statutory and regulatory restrictions applicable to them generally or as employees of their specific agencies. Because an employee is considered to be on notice of the requirements of any statute, an employee should not rely upon any description or synopsis of a statutory restriction, but should refer to the statute itself and obtain the advice of an agency ethics official as needed.
§ 2635.102 Definitions.
The definitions listed below are used throughout this part. Additional definitions appear in the subparts or sections of subparts to which they apply. For purposes of this part:
(a) Agency means an executive agency as defined in 5U.S.C. 105 and the Postal Service and the Postal Rate Commission. It does not include the General Accounting Office or the Government of the District of Columbia.
(b) Agency designee refers to any employee who, by agency regulation, instruction, or other issuance, has been delegated authority to make any determination, give any approval, or take any other action required or permitted by this part with respect to another employee. An agency may delegate these authorities to any number of agency designees necessary to ensure that determinations are made, approvals are given, and other actions are taken in a timely and responsible manner. Any provision that requires a determination, approval, or other action by the agency designee shall, where the conduct in issue is that of the agency head, be deemed to require that such determination, approval or action be made or taken by the agency head in consultation with the designated agency ethics official.
(c) Agency ethics official refers to the designated agency ethics official or to the alternate designated agency ethics official, referred to in §2638.202(b) of this chapter, and to any deputy ethics official, described in §2638.204 of this chapter, who has been delegated authority to assist in carrying out the responsibilities of the designated agency ethics official.
(d) Agency programs or Operations refers to any program or function carried out or performed by an agency, whether pursuant to statute, Executive order, or regulation.
(e) Corrective action includes any action necessary to remedy a past violation or prevent a continuing violation of this part, including but not limited to restitution, change of assignment, disqualification, divestiture, termination of an activity, waiver, the creation of a qualified diversified or blind trust, or counseling.
(f) Designated agency ethics official refers to the official designated under §2638.201 of this chapter.
(g) Disciplinary action includes those disciplinary actions referred to in Office of Personnel Management regulations and instructions implementing provisions of title 5 of the United States Code or provided for in comparable provisions applicable to employees not subject to title 5, including but not limited to reprimand, suspension, demotion, and removal. In the case of a military officer, comparable provisions may include those in the Uniform Code of Military Justice.
(h) Employee means any officer or employee of an agency, including a special Government employee. It includes officers but not enlisted members of the uniformed services. It includes employees of a State or local government or other organization who are serving on detail to an agency, pursuant to 5 U.S.C. 3371, et seq. For purposes other than subparts Band C of this part, it does not include the President or Vice President. Status as an employee is unaffected by pay or leave status or, in the case of a special Government employee, by the fact that the individual does not perform official duties on a given day.
(i) Head of an agency means, in the case of an agency headed by more than one person, the chair or comparable member of such agency.
(j) He his and him include she hers and her.
(k) Person means an individual, corporation and subsidiaries it controls, company, association, firm, partnership, society joint stock Company or any other organization or institution, including any officer, employee, or agent of such person or entity. For purposes of this part, a corporation will be deemed to control a subsidiary if it owns 50 percent or more of the subsidiary's voting securities. The term is all-inclusive and applies to commercial ventures and nonprofit organizations as well as to foreign, State, and local governments, including the Government of the District of Columbia. It does not include any agency or other entity of the Federal Government or any officer or employee thereof when acting in his official capacity on behalf of that agency or entity.
(l) Special Government employee means those executive branch officers or employees specified in 18 U.S.C. 202(a). A special Government employee is retained, designated, appointed, or employed to perform temporary duties either on a full-time or intermittent basis, with or without compensation, for a period not to exceed 130 days during any consecutive365-day period.
(m) Supplemental agency regulation means a regulation issued pursuant to §2635.105.
[57 FR 35042, Aug. 7, 1992, as amended at 71 FR 45736, Aug.10, 2006]In a message dated 5/14/2014 7:47:45 A.M. US Mountain Standard Time, tz@dejazzd.com writes:
From: Haroldh
Sent: Wednesday, May 14, 2014 9:35 AM
Subject: Re: Fw: Fiduciary Duty: What is it and what does it impose on you
What is BABY ACT?
plea of infancy, interposed for the purpose of defeating an action upon a contract made while the person was a minor, is vulgarly called “pleading the baby act.” By extension, the term is applied to a plea of the statute of limitations.
Law Dictionary: What is BABY ACT? definition of BABY ACT (Black's Law Dictionary)When did you sign up for all of these contracts
In a message dated 5/14/2014 5:19:08 A.M. US Mountain Standard Time, tz@dejazzd.com writes:
Sent: Wednesday, May 14, 2014 8:07 AM
To: Harold
Subject: Re: Fiduciary Duty: What is it and what does it impose on you
With the reservation of any and all rights... THEY are tied
WITHOUT PREJUDICE-UCC 1-308, UCC 1-103.6, ALL RIGHTS RESERVED
On Wednesday, May 14, 2014 7:01 AM, Tim Miller a href="mailto:longest95@yahoo.com" title="mailto:longest95@yahoo.com">longest95@yahoo.com> wrote:
You can be the executor and beneficiary... BUT NEVER NEVER NEVER the beneficiary and fiduciary or trustee at the same time. The arms length rule applies. You are committing fraud if you "act" as the fiduciary or trustee and beneficiary at the same time..
I always like to use the triangle image
When you were born... you were born free and the beneficiary in expectancy in due course, the sate through FRAUD assumed to be the executor under Parens Parentia... by the state registration of your COLB... by THEIR registar. Your MOTHER was an incompetent husbandless trustee.
The triangle persists and THEY get access to YOU through your SS-5 app.
ONCE you become of the AGE of Majority, you can resume your Office of Executor... BUT you must notarize, record and serve upon the proper "person" of the state. Presumptions of the state must be DENIED...
- In the instance of the Natural Person, case there is no ens legis between the State and the Human Being, there is no artificial construct (ens legis) between the State and the Human being; and
- there is however, the presumption, on the part of the State, I DENY ALL; and
- that a “Natural Person” exists as the manifestation of the human being operating under the privilege or license and giving it expression, and
- I, Timothy John Miller, the living beneficiary-in expectancy- DENY the twelve (12) key presumptions asserted by the Private Bar Guilds;
- The Public Record; and
- Public Service; and
- Public Oath; and
- Immunity; and
- Summons; and
- Custody; and
- Court of Guardians; and
- Court of Trustees; and
- Government as Executor/Beneficiary; and
- Executor De Son Tort (not a party to); and
- Incompetence; and
- Guilt.
The State [refuses to] cannot hear Human beings.
The State can hear Natural Persons which might express exactly what a human being might express, except that the “voice” of the “Natural Person”, is heard in their forum and under the presumption that the one speaking is doing so in the capacity of natural person. Utterances from the natural person which are inconsistent with the ascribed characteristics of Natural Person are disregarded as nonsense or babble. Words which come from a Natural Person wherein one is attempting to enforce rights and power manifest in man by God or by force of nature are not taken cognizance of by State/Federal officials.
On Tuesday, May 13, 2014 9:39 AM, "Haroldhayden@aol.com" a href="mailto:Haroldhayden@aol.com" title="mailto:Haroldhayden@aol.com">Haroldhayden@aol.com> wrote:
I can't Stress this point enough .Never ever do you want to be a Fiduciary/Trustee.
You always want to be the Beneficary for they CAN NOT be sued
THE FIDUCIARY DUTY: WHAT IS IT AND WHAT DOES IT IMPOSE UPON YOU?
INTRODUCTION
The odds are good you already have a fiduciary duty to someone. Probably you have many fiduciary duties to many people. And the odds are good you may not fully understand the scope and the risks inherent in having such a fiduciary duty.
The fiduciary duty is an obligation of loyalty and good faith to someone or some entity that is the highest duty known to the law. It requires a degree of loyalty and care that does not allow any violation without exposing the violator to personal liability. Often, it can apply without you even expressly agreeing to undertake it. It does not allow for any conflict of interest whatsoever and requires full disclosure of any potential conflict of interest. It requires complete honesty and disclosure of any relevant information from the fiduciary to the person to whom it is owed. As one great jurist wrote, it does not allow for, “…a scintilla” of disloyalty to exist.
Before one marries, before one becomes a director of a company, a partner in a company, a parent, the executor of a will, the trustee of a trust, an employee to a company, a contractor to a company, a lawyer to a client, a real estate broker or agent, a doctor, a therapist, etc, etc, one should have a good understanding of the nature of fiduciary duty and how it affects your exposure to liability since all those relationships can create a fiduciary duty on your part.
DEFINITION
To owe a duty to someone or something means that one has a set of obligations owed to that person. The fiduciary duty is the highest set of obligations that one can owe to another. In its simplest terms, it means that the “fiduciary” (the one who has the duty) owes to the “beneficiary” (the one to whom the duty is owed) the highest degree of care and devotion. It means that the fiduciary must act in the best interests of the beneficiary at all times and can never take any action which harms the beneficiary intentionally and must avoid negligently harming the interests of the beneficiary as well. It means that the fiduciary can not place him or herself in a position in which the interests of the fiduciary are in conflict with the duty to the beneficiary. It means that full disclosure of any potential conflicts of interest must be revealed to the beneficiary if they arise. In some cases, it requires the fiduciary to make proactive investigation to determine what is in the best interests of the beneficiary and act accordingly.
Perhaps some examples will best illustrate. A lawyer owes a fiduciary duty to a client. The lawyer must at all times act in the best interest of the client and must make full disclosure of any economic or other interest that the lawyer has that might conflict with the interest of the client. The lawyer is obligated to take all actions and give all advice that will benefit the client and to use professional skill and energy to protect the client’s interests. Should a conflict on interest arise (for example, the lawyer discovers that one client wishes to hire him to sue another one of his clients) the lawyer must immediately make full disclosure of such conflict and take steps to immediately end the conflict regardless of the personal cost to the lawyer.
And that duty requires the lawyer to affirmatively determine if there is a conflict of interest. In California, the lawyer is required to investigate to determine if he or she represents any client that is in conflict with another or has any economic interest that may not be to the benefit of the clients. (Law firms are required to perform a “conflicts” search to check each client they have ever represented to make sure a new client is not adverse to that previous client’s interests.) Implicit in this concept is that one can not act as a fiduciary and be in even a potential conflict of interest. The very fact that one may be placed in the future in a conflict requires one to make full disclosure and withdraw unless both clients, after full disclosure, waive the potential conflict.
Another example is a parent to a child. Each parent owes to each child, as a legal matter, a fiduciary duty. The parent is required by law to act in the best interest of the child and failure to do so can impose both civil and criminal liability (child neglect.) And, since the child is a minor, there can be no waiver of such fiduciary duty by the child. That fiduciary duty applies also to any guardian of the child.
Spouses owe to one another fiduciary duties as well. Each spouse is required to act in the interests of the other in all economic and other dealings, being required to make full disclosure. Contracts between spouses thus require a degree of disclosure of information and warning of possible conflicts that one does not find in a typical contract and if these disclosures are not made a spouse can often void a contract. Such fiduciary duties have been found to apply even to fiancées about to be married.
The list of such duties is extensive: A few examples:
- Lawyer to Client
- Director of Corporation to Corporation and its shareholders.
- Officer of Company to the Owners of the corporation.
- Broker to client (both stock and real property brokers have the duty.)
- Employee to Employer
- Executor of Will to Beneficiaries.
- Trustee of Trust to Beneficiaries.
- Spouses to each other. Parent to child.
- Partner to all other partners.
10. Doctor to patient.
11. Psychiatrist to patient.
12. Financial advisor to client.
13. Insurance broker to client.
14. Agent to Principle.
15. Accountant to client
16. Guardian to beneficiary
17. Conservator to beneficiary (conservatee)
And many, many others. To determine if a fiduciary duty applies, one should seek legal advice. It is vital to know if your relationship to another person or entity is a fiduciary one.
Certain relationships that may be close are not held to amount to a fiduciary duty. Thus friends do not have such a duty to each other, nor to shareholders to other shareholders (unless one is a majority shareholder in which case some jurisdictions impose such a duty) nor advertising executives to clients nor negotiation parties to each other. Sales people do not normally have any fiduciary duty to the customers, and most employers do not have a fiduciary duty to most employees though duties to keep a location secure and safe and free from illegal harassment have been imposed on some employers in some jurisdictions.
Contrasting Other Types of Duties
The law does impose other, lesser, duties. For instance, one has a “duty of due care” in operating an automobile so that one does not injury another. One has a duty to act to reasonably mitigate damages if one has suffered a beach of contract and is planning to sue. There are dozens of other duties that the law imposes, but none reach the high standard of fiduciary duty which is, literally, the highest obligation that the law can impose on a person.
PERSONAL LIABILITY AND THE STATUTE OF LIMITATIONS
Inherent in the concept of fiduciary duty is that one is personally liable if one violates it. Thus, if you are a trustee or a real estate broker, the law imposes personal liability upon you for the breach of that duty. While corporations or other limited liability entities may at times act to limit the extent of personal liability in some instances, and while insurance is often available that can cover one for negligent breach of fiduciary duty, in most instances the law will impose liability directly on the fiduciary who is found to have breached that duty and if the breach was willful, insurance will normally not cover the liability.
Thus, a director to a company, an executor to a will, a trustee to a trust, etc, etc, undertake a personal obligation that can have far reaching risks should they breach that duty. Further, the statute of limitations (the time in which an injured party must commence action for alleged breach of duty) is normally extremely long for a fiduciary. First, if the beneficiary is a minor, the statute is normally tolled until the minor reaches the legal age to sue. Further, if the fiduciary does not fully disclose to the beneficiary the facts that give rise to the liability, the statute may be tolled until the beneficiary knew or should have known that the wrongful act occurred.
This office filed an action against a trustee who had breached her duty to her beneficiaries in 1963. The embezzlement was discovered twenty years after the theft and five years after she died. During the discovery, additional wrongful acts were discovered going all the way back to the 1940’s and since those had been kept hidden they were allowed by the Court as additional causes of action…including action against co trustees, in this case the bank. Thus almost fifty years after the wrongful act occurred the Court granted a judgment based on breach of fiduciary duty! Since by the time of the judgment, the fiduciary was deceased, the verdict was enforced against her spouse who had received (perhaps unknowingly) some of the proceeds of her wrongdoing.
JOINT FIDUCIARY DUTIES
One aspect of fiduciary duty not understood fully by many fiduciaries is that if they are co fiduciaries (joint trustees, joint executors, directors, etc.) the duty and the liability may be “joint and several.” This essentially means that if two fiduciaries breach their obligations resulting in harm to the beneficiary, each is individually liable for the entire damage rendered to the beneficiary. While each fiduciary may be able to claim contribution from the other for payments therefore due the beneficiary, the beneficiary need not collect equally from both. Commonly, one fiduciary disappears or is insolvent and the remaining fiduciary must therefore bear the entire brunt of the payments.
The duty of inquiry on the part of a fiduciary also means that if you know or should know that another fiduciary is breaching his or her duty, you must both make reasonable inquiry to determine if that is the case and take proactive steps to protect the beneficiary. If you own negligence allows the other fiduciary to harm the beneficiary, you may find yourself liable, at least in part, even if the other fiduciary acted intentionally wrongfully. (Typical example is that you allow a co fiduciary to sign all the checks and do not audit or oversee the action. If that co fiduciary steals some money and disappears, it is likely your negligence would allow the beneficiary to seek relief against you.
Recent events have demonstrated that Boards of Directors of companies are often found liable for failure to exercise their fiduciary duty when an officer of the company breaches his or her own fiduciary duty and they fail to exercise reasonable oversight.
The key lesson is this: just because you have other people sharing your fiduciary duty does NOT lessen your obligations to protect the beneficiary. Indeed, in light of the need to carefully oversee the actions of the other fiduciaries, it may enlarge your duties.
PROTECTIONS
The most important steps a fiduciary can take are to exercise due care in protecting the beneficiary and understand that duty can not be easily avoided by waiver or “excuses.” If you are a fiduciary, you are there to protect and you must take those duties seriously and continuously oversee the obligations you have undertaken.
If there is any conflict of interest, you must make full disclosure and either get a written waiver from the beneficiary AFTER full written disclosure is made or, better yet, resign from any fiduciary position in which you are in a conflict of interest. The important steps are disclosure and informed consent or resignation.
If you become ill or other factors make it impossible to perform your duties, you must immediately take those steps to assure someone else will assume the duties. If no other people are apparent, you may have to petition the court to be removed and to appoint another person to assume your duties. Most documents creating fiduciary duties, such as Minutes of a corporation or a Will or Trust provide for either alternative fiduciaries or a method to appoint one.
For those duties imposed by law, such as parent to child or spouse to spouse, the duty can not be abrogated so easily and in some cases, as with a child, not at all. In that case, you must simply perform as the law requires.
SELF-DEALING
By far the most common cause of litigation with fiduciaries involves “self dealing,” namely acting to benefit the fiduciary to the harm of the beneficiary. Typical situations are entering into contracts between the Trust or Company and the fiduciary that are above market value to the fiduciary; borrowing money from the Trust or estate; failing to report errors made so the beneficiary can not protect him or herself, etc. etc.
In such instances, the fiduciary is often not only removed, but faces reimbursement to the beneficiary and possible punitive damages if the self dealing was knowing. A good basic rule is never engage in any transaction with the fiduciary in which the decision to make the transaction is not approved WITHOUT your involvement AND is in the best interests of the beneficiary who has received full written disclosure of all aspect of the transaction.
A typical method and one often seen in corporations is that any director whose business is to enter into a transaction with the company makes written disclosure to the board, removes himself from the board room when the matter is deliberated, and does not vote on the decision. (The corporations code specifically allows such self dealing if certain steps are taken: other fiduciary obligations, as when one is a Trustee of a trust, may be much harder to overcome in self dealing situations.) Legal advice if vitally necessary before any such transaction occurs and both the fiduciary and the beneficiary should obtain separate legal counsel to advise on the transaction.
SO, WHY BECOME A FIDUCIARY?
Some duties are imposed upon you and you have no choice (parents and children, spouses, etc) but others are undertaken voluntarily by the fiduciary who understands that the obligation is either necessary to achieve business or family ends, or a moral obligation that must be undertaken.
Most fiduciaries are in the family estate and trust structure and understand that they must assume the obligation for protection of siblings, parents or children. And if you are in a corporate or limited liability structure, or a partnership structure, such duty is necessarily imposed as part of the business structure. Even as an employee you must assume that duty and the simple fact is that to get by in life and earn a living and be a member of a family or community, one necessarily finds oneself assuming such fiduciary duties and, in most cases, many fiduciary duties.
It is thus important to fully understand what that means and to make sure you actions do conform to those obligations. One friend put it well to the writer when asked if he really wanted to assume that obligation in an estate plan: “One can judge oneself by the number of people who trust you enough to ask you to undertake what amounts to the highest obligation that exists. They want me to protect them if incompetent. What greater compliment could they ever give me?”
But with that compliment comes obligation and perhaps the first duty of a fiduciary is…to know what the total duties are!
These Articles are to give the reader a general description of certain areas of the law. Legal advice is necessary to apply these legal concepts to your particular situation. The Reader should obtain competent legal advice before relying on the Articles.
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