(a) The terms of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that it:

1. (1) relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
2. (2) was inserted as the result of an abuse by the trustee of a fiduciary or confidential relationship to the settlor.

(b) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless:

1. (1) the settlor is represented by independent counsel with respect to the trust instrument containing the term; or
2. (2) the trustee proves that the exculpatory term is fair under the circumstances and that its existence and contents were adequately communicated to the settlor.