Taxation & Estate Planning

You?re POA For Mom/Dad And They Have a Trust? Can You Change The Trust?

By michael

This question comes up frequently…  Someone is the power of attorney for someone else, let’s say mom or dad, and the POA wants to  change to mom or dad’s trust in their capacity as power of attorney to conform to some new wish of mom or dad.  Can the POA holder do so after mom or dad has become incompetent and unable to make the change themselves? What’s the big deal?  Usually the POA holder has been making decisions for mom or dad for some time now – writing checks, making investment decisions and maybe even changing beneficiary designations on life insurance policies or retirement plans to avoid probate – so this would seem a small thing.

Not so.

The Ohio Trust Code clearly states in Section 5806.02(E): “An agent under a power of attorney may exercise a settlor?s powers with respect to revocation, amendment, or distribution of trust property only to the extent expressly authorized by both the terms of the trust and the power.”

So unless both your POA and the trust you want to modify explicitly authorize you to do so, in Ohio, you’re out of luck.  Such specifically delegated powers in both documents are not default.  And for good reason. So if you’re uncertain about your ability to make a change to your Principal’s trust, contact a qualified estate planning attorney in your area to answer this common (but always simple) question

I was reminded of this point by Gregg’s post today about this same issue in North Carolina.

Full post as published by The Ohio Trust & Estate Blog on February 28, 2011 (boomark / email).