We recommend that one or both trustees open the account, naming the trust’s business as the account owner. We think that the trustee (or trustees) opening the account should be an authorized signer, but the other two non-trustee individuals also may be designated as authorized signers.

The Illinois Trusts and Trustees Act limits the types of powers that a trustee may delegate to non-trustees. It prohibits trustees from delegating powers that involve “judgment or discretion” (with the exception of investment decisions under certain circumstances). However, several Illinois courts have established that trustees may delegate “purely ministerial” powers that do not require the exercise of judgment or discretion. The question of whether the non-trustee authorized signers would be acting in a ministerial or discretionary capacity is highly fact-specific, but regardless, we do not think it is incumbent upon your bank to make this determination.

Perhaps a more important consideration, though, is that under the federal and Illinois financial privacy laws, if neither trustee is an authorized signer, they probably should not be granted access to the account statements and other account information, which could pose problems for the trustees. This would not be an issue if at least one trustee is an authorized signer, even if the trustees never intend to use this authority.

The authorized signers’ authority to sign on behalf of the trust’s business account should be documented as you would do for any other business account’s authorized signers. Such signing authority should be evidenced by a corporate resolution of the trust’s business or other acceptable documentation granting the non-trustees the authority to sign on behalf of the business (while also defining the scope of the authorized signer’s authority).

For resources related to our guidance, please see:

• Trusts and Trustees Act, 760 ILCS 5/5.1(a) (“The trustee has a duty not to delegate to others the performance of any acts involving the exercise of judgment and discretion, except acts constituting investment functions . . . .”)

• In re Trusteeship Under Last Will and Testament of Hartzell, 43 Ill.App.3d 118, 136–37 (2nd Dist. 1963) (“. . .  the trustee may, of course, employ agents or attorneys or others to perform merely ministerial duties connected with the trust. . . [but] a trustee cannot simply commit a ministerial matter to an attorney and relieve himself of all further supervision — the trustee should know what steps the attorney is taking and should use due care to have the attorney fulfill his employment.”)

• Regulation P, 12 CFR 1016.10 (Limitations on sharing financial information with nonaffiliated third parties)

• Illinois Banking Act, 205 ILCS 5/48.1 (Illinois law’s financial privacy provisions)