Can my POA make changes to my Revocable Living Trust in Florida
Can Power of Attorney Amend a Revocable Living Trust?
The real question is: do you want to empower someone else to make changes to your estate plan if you become incapacitated - but before you pass away (once you pass away, a revocable trust becomes irrevocable and, essentially, no changes can be made).
I am not advocating one way or the other. Our purpose, when meeting with potential clients, is to give them options to consider, discuss our prior experience as to how those decisions have played out with other clients, listen to their concerns, learn about their family dynamic, and ultimately honor their wishes.
The purpose of positing the question this way is to really make my clients think about how much power they want to give their agent (a/k/a “attorney-in-fact”) through a Florida Durable Power of Attorney.
Whether you do or do not want to give your agent the power to amend your Florida Revocable Living Trust is up to you.
But, if we suppose that the answer is yes, ensuring that your agent under a POA has the ability to make changes to your trust is not as easy as one might assume.
Some people assume that if the POA allows for the agent to make changes to a trust, that they are good to go. Not the case.
First, consider Fla. Stat. 709.2202(1)(b). This is the statute that provides which powers must have initials next to them in order to be effective. Relevant to this article is (emphasis added to the quote):
(1)(b): An agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of authority [in the POA document].
With respect to a trust created by or on behalf of the principal, amend, modify, revoke, or terminate the trust, BUT only if the trust instrument explicitly provides for amendment, modification, revocation or termination by the settlor [or grantor]’s agent.
Steps Required to Allow POA to Later Amend a Revocable Trust
So, the relevant Florida statute instructs us on a few steps that are needed in order to allow an agent of your choosing, acting via a Durable Power of Attorney, to amend your revocable trust at a later date:
- The language in the Durable Power of Attorney must specifically state that you (the principal) are granting your attorney-in-fact (your agent) the ability to amend trusts.
- The Florida statute indicates that this written permission must have the principal’s initials next to it.
However, these two steps – which only involve the language and signing process for one document - i.e. the Power of Attorney – are not sufficient. You can have the best, most specific, most well executed Durable Power of Attorney in the world, but the Florida statute also provides that a 3rd step must be completed:
- The Revocable Living Trust itself must specify that an agent via a POA has the ability to use a POA to amend the trust.
As a result, to give your agent the ability to amend your trust, the trust document itself must contain language similar to the following (usually found in the living trust section that specifies how/when the trust can be amended): “An agent or attorney-in-fact may exercise the powers allowing for this trust to be amended or restated.”
This interplay between a Florida Power of Attorney and Florida Revocable Trust is just one example how these documents are not one-size-fits-all. There are many other examples of situations like this that seem obviously - but are not.
By using templates, you are taking the risk that your wishes will not be honored - or the flexibility you hope the documents provide may not materialize in the way you would hope.
If you or anyone you know in Florida would like to discuss estate planning, probate avoidance, probate, Medicaid asset protection planning or any other elder law attorney matter, please call or fill out a form and we'll have our intake team reach out to schedule a consultation.
