PROBATE CORNER
PROBATE CORNER
Amending An Irrevocable Trust – Let Me Count The Ways
DAVID M . GARTEN
DIRECTED TRUST : Refer to the Florida Uniform Directed Trust Act , §§ 736.1401- 736.1416 , F . S . A directed trust is a trust in which a person , other than a trustee , ( i . e ., the “ trust director ” a / k / a “ trust protector ”) has a power over some aspect of the trust ’ s administration . The powers are referred to in the trust instrument and include such further powers that are appropriate to the exercise or nonexercise of those powers . A trust director is subject to the same fiduciary duties and liability as a trustee would have if the trustee had such powers .
DECANTING : Refer to § 736.04117 , F . S . Decanting is often considered to be the ultimate amendment power because it enables the authorized trustee to modify the trust terms without the consent of other trust parties or the court as long as the decanting furthers the purpose ( s ) of the first trust . There are a number of benefits to decanting , including : ( a ) create a supplemental needs trust for a disabled beneficiary , ( b ) correcting drafting errors , and ( c ) decanting to a trust created or administered under the laws of any other state .
POWER OF ATTORNEY : Pursuant to § 709.2202 ( 1 ), F . S ., an agent may exercise the following authority if the principal signed or initialed next to the specific enumeration of the authority , the exercise of the authority is consistent with the agent ’ s duties under s . 709.2114 , and the exercise is not otherwise prohibited by another agreement or instrument : ( a ) Create an inter vivos trust ; ( b ) 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 ’ s agent ….”
PBCBA BAR BULLETIN 21