Exculpation

(1) Unless the foundation charter, the by-laws or this Act provides otherwise, no member or protector shall be liable for any breach of fiduciary duty, unless the breach of fiduciary duty is the member’s or protector’s own intentional and wilful fraudulent act or omission or the member or protector is intentionally and wilfully privy to any other person’s intentional and wilful fraudulent act or omission. (2) For greater certainty, examples of acts or omissions that would not in and of themselves constitute fraudulent acts and omissions include– (a) the failure, depreciation or loss of any investment or of any other matter or thing; (b) the exercise or failure to exercise a discretion or power or the refusal or failure to concur in the exercise of a discretion or power; (c) the failure to attend, to interfere with or to inquire into the management of any entity the shares or other ownership interests of which form part of the foundation endowment includingInternational Foundations [CAP. 24:02 55 (i) the reliance on information given at or otherwise by the management or representative of any such entity; (ii) the failure to act upon any information received from inquiring into the management or operation of any such entity; and (iii) the failure to require the management of any such entity to consult and inform the foundation council or protector so that the foundation council or protector may intervene if necessary to safeguard the interests of the foundation endowment; (d) the reliance in good faith upon the opinion or advice of a co-member or co-protector or counsel or the Court as to the interpretation of the terms of the foundation charter or by-laws in any respect or as to any other issue that may arise; (e) the reliance upon the opinion or advice of any other professional person in a matter apparently falling within the professional expertise of such person; and (f) giving advice to the founder regarding the establishment, administration, maintenance, business undertaking, affairs, investment or endowment of the foundation, the legal, accounting or taxation aspects of the foundation or any arrangements undertaken by the foundation council or protector and any representations that the suggested for the foundation will attain the objectives or advantages intended. 56