Taxation & Estate Planning

Another Attempt By A POA Holder To Modify A Trust

By Michael D. Bonasera, Esq.

David Goldman writes here about Gurfinkel v. Marmor December 12, 2007, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA) (PDF). A case out of Florida where “[t]he decedent?s trust beneficiaries challenged a pre-death “amendment” executed by the decedent?s spouse as attorney in fact pursuant to a valid Durable Power of Attorney.”

The amendment “deleted” the trust?s primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent?s sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.

And I think that’s the correct decision. Its interesting to note that these cases are out there, and kind of sad too… I’m assuming that both the Durable Power of Attorney and the Trust were drafted by the same attorney and, if they were, and if it was actually the decedent client’s wish that his spouse be able to alter his trust after his passing (perhaps to account later for unforeseeable circumstances) then we have another case of sloppy drafting and potential malpractice by the drafting attorney. While this case is interesting, it doesn’t get us any closer to solving the running debate I posted on here.

Thanks again David - great post.

Full post as published by The Ohio Trust & Estate Blog on March 16, 2008 (boomark / email).